State ex rel. Payne v. Kinloch Telephone Co.

though it might deny the use of highways to companies in any way prohibited by contract or otherwise from serving all comers impartially.

Independent of the statute, however, the duty is imposed by law upon telephone companies to supply all those who are in similar circumstances, the same facilities, under reasonable limitations, for the use of its telephonic system, without discrimination. It cannot impose the condition that the patron agree to use its telephone system exclusively, particularly when such stipulation is not required of others in the same business and neighborhood. State ex rel. Gwynne v. Citizens' Telephone Co., 7 Am. Electl. Cas. 838, 61 S. C. 83, 39 S. E. 257. A telephone company as a public service corporation is charged with certain public duties, among which are to furnish for a reasonable compensation to any citizen a telephone and telephonic service, and to charge each patron for the service rendered the same price which it charges every other patron for the same sevice under substantially the same or similar conditions. Nebraska Telephone Co. v. State, 7 Am. Electl. Cas. 860, 55 Neb. 627, 76 N. W. 171; see, also, in this connection State v. Nebraska Telephone Co., 1 Am. Electl. Cas. 700, 17 Neb. 126, 22 N. W. 237; People ex rel. Postal Telegraph Cable Co. v. Hudson River Telephone Co., 2 Am. Electl. Cas. 394, 19 Abb. N. C. (N. Y.) 466; Central Union Teleph. Co. v. Bradbury, 2 Am. Electl. Cas. 14, 106 Ind. 1, 5 N. E. 721; Central Union Teleph. Co. v. State, 2 Am. Electl. Cas. 27, 118 Ind. 194, 19 N. E. 604.

(c.) Discrimination against telegraph companies.—A contract between one telephone company and another company for the rental of telephonic instruments and appliances, which forbids the use of the instruments thereby leased to be given to certain telegraph companies, is void as in derogation of public policy and of a statute which forbids such discrimination. State ex rel. American Union Teleg. Co. v. Bell Telephone Co., 1 Am. Electl. Cas. 299, 36 Ohio St. 299; State ex rel. Amer. Union Teleg. Co. v. Bell Teleph. Co., 1 Am. Electl. Cas. 304, note; State ex rel. B. & O. Tele. Co. v. Bell Teleph. Co., 2 Am. Electl. Cas. 404, 23 Fed. 539; Bell Teleph. Co. v. Commonwealth, 2 Am. Electl. Cas. 407, 17 Wkly. Notes Cas. (Pa.) 505; Atlantic, Chesapeake & P. Teleph. Co. v. B. & O. Teleg. Co., 2 Am. Electl. Cas. 416, 66 Md. 399, 7 Atl. 809; Commercial Union Teleg. Co. v. N. E. Teleph. & Telegraph Co., 2 Am. Electl. Cas. 426, 61 Vt. 241, 17 Atl. 1071; State ex rel. Postal Telegraph Cable Co. v. Delaware & A. Teleg. & Teleph. Co., 3 Am. Electl. Cas. 533, 47 Fed. 633, aff'd 4 Am. Electl. Cas. 579, 50 Fed. 677; see contra, Amer. Rapid Teleg. Co. v. Connecticut Teleph. Co., 1 Am. Electl. Cas. 390, 59 Conn. 352.

3. Rules and regulations.—Telephone companies have the right to make reasonable regulations controlling the transaction of their business. Such regulations must be reasonable and cannot have the effect of relieving a company of the duties and obligations which it owes its patrons by means of its public character. Central Union Teleph. Co. v. Swoveland, 6 Am. Electl. Cas. 679, 14 Ind. App. 341, 42 N. E. 1035. In the case of People ex rel. Postal Teleg. Cable Co. v. Hudson River Teleph. Co., 2 Am. Electl. Cas. 394, 19 Abb. N. C. (N. Y.) 466, a regulation of a telephone company forbidding the use of its instrument for messages in respect to which toll is to be paid to any other

State ex rel. Payne v. Kinloch Telephone Co.

party than the telephone company, was held reasonable at common law, and not forbidden by the New York statute; a regulation forbidding the use of telephones to call messengers, except those in the employ of the telephone company, was held unreasonable and void. In the case of Louisville Transfer Co. v. Amer. District Telephone Co., 1 Am. Electl. Cas. 305, note, 24 Albany Law J. 283, both parties were engaged in the carriage and coupe service, and the defendant insisted upon the right to a monopoly in the use of its own telephone methods of communicating and receiving orders for coupes. The court held otherwise, and granted an injunction restraining the defendant from removing the telephone, and from refusing to transact the plaintiff's business.

A condition in the contract of a telephone company with its patrons forbidding the use of profane and indecent language over the telephone, is reasonable, and properly enforced by refusing further service in case of refusal of the patron to observe it. Pugh v. City & Suburban Teleph. Assn., 1 Am. Electl. Cas. 471, 9 Cinn. Law Bul. 104.

4. Duty to notify party with whom interview is sought.-It is a part of the duty of a telephone company in relation to its toll service business to notify the party with whom a telephone interview is sought, provided he be within a reasonable distance, that he is wanted at the instrument at the terminal station, and to do so within a reasonable time. A regulation, publicly displayed at the station of a telephone company, that it will not undertake to deliver messages and that any person who assists in conversation does so as the agent of the patron, and not of the company, does not excuse the company's failure to give such notification. Central Union Teleph. Co. v. Swoveland, 6 Am. Electl. Cas. 679, 14 Ind. App. 341, 42 N. E. 1035.

5. Removal of telephone for unpaid rental; measure of damages. -A telephone company having contracted to furnish the proprietor of a general messenger business with the use of a telephone for a fixed time at a fixed rate, has no right to refuse connection for the purpose of notifying persons wanted at another telephone exchange, or to remove its instrument because of refusal to pay on account of such refusal to connect, and for such removal is liable in damages. In such a case prospective profits are a proper element in measuring damages; and a verdict based on reasonable increase of business will not be disturbed as excessive. Owensboro Harrison Teleph. Co. v. Wisdom, 23 Ky. Law Rep. 97, 62 S. W. 529, 7 Am. Electl. Cas. 855. In the case of Malochee v. Great Southern Teleph. & Teleg. Co., 49 La. Ann. 1690, 22 So. 922, it was held that a subscriber for telephone service who, in default of payment stipulated for the service, is notified by the telephone company that the telephonic instruments will be removed from his premises unless he pays the amount due, and replies that the company can do as it pleases, has no claim for damages because the instruments are thereafter removed by the company, the written notice of the removal specified in the contract, being wholly unnecessary and deemed waived.

6. Rights of subscribers upon transfer.- In the case of Mahan v. Michigan Teleph. Co., 8 Am. Electl. Cas. 38, 93 N. W. 630, the franchise of a

State ex rel. Payne v. Kinloch Telephone Co.

telephone company had been transferred under an ordinance authorizing such transfer subject to the terms and conditions prescribed thereby; it was held that the permitting of access by the transferee to its service to the subscribers of the original company implied a construction of the ordinance to the effect that the transferee was bound thereby to furnish service to the subscribers of the original company, and such an implied construction cannot afterwards be repudiated; such subscribers may enforce their rights against the purchasing company by mandamus.

7. Legislature may fix telephone rates.—A telephone company being a commmon carrier, and not a mere private business corporation, its instruments and appliances are in legal contemplation devoted to a public use, and are thus subject to legislative regulation and control. The State may regulate the rental price of telephones, to the extent of fixing a miximum price. This is by virtue of the police power of the State, and is not affected by the fact that the articles used and furnished to patrons by the telephone company are patented. Hockett v. State, 2 Am. Electl. Cas. 1, 105 Ind. 250, 5 N. E. 178; Central Union Telephone Co. v. Bradbury, 2 Am. Electl. Cas. 14, 106 Ind. 1, 5 N. E. 721; Johnson v. State of Indiana, 2 Am. Electl. Cas. 22, 113 Ind. 143, 15 N. E. 215; Central Union Teleph. Co. v. State, 2 Am. Electl. Cas. 127, 118 Ind. 194, 19 N. E. 604. A statute prescribing a fixed maximum rental for telephones cannot be evaded by charging the maximum for the subscribers' use and an additional fixed sum for the use of an instrument by non-subscribers." Johnson v. State of Indiana, 2 Am. Electl. Cas. 22, 113 Ind. 143, 15 N. E. 215.

66

In the case of City of St. Louis v. Bell Telephone Co., 2 Am. Electl. Cas. 44, 96 Mo. 623, 10 S. W. 197, it was in effect held that although power might be vested in the Legislature to regulate telephone rates and to authorize cities to regulate them, municipal authorities, in the absence of express statutory authority, cannot fix or limit the rates of charges of telephone companies doing business within the limits of the city.

The power to determine what compensation a telephone company may exact for services to be rendered by it is a legislative and not a judicial function. Nebraska Telephone Co. v. State, 7 Am. Electl. Cas. 860, 55 Neb. 627, 76 N. W.

171.

Snell v. Clinton Elec. L., H. & P. Co.

PATRONS OF ELECTRIC LIGHT COMPANIES.

SNELL V. CLINTON ELEC. L., H. & P. Co.

Illinois; Supreme Court.

1. ELECTRIC LIGHT TRANSFORMERS; RIGHT OF COMPANY TO CHARGE THEREFOR; UNJUST DISCRIMINATION. It is an unjust discrimination for an electric light company to refuse to furnish to a customer a transformer or converter for the purpose of reducing the current from the main line so as to permit of its safe use for electric lighting purposes in a house, without an extra charge therefor, where it appears that such company has furnished such instruments to other customers without extra pay; such refusal is not justified upon the ground that where no charge was made for such transformers the electric wiring was installed by the electric light company.

Appeal by petitioner from a judgment of the appellate court reversing a judgment awarding a writ of mandamus against the defendant. Decided April 16, 1902; reported 196 Ill. 626, 63 N. E. 1082.

Statement by CARTER, J.:

This was a petition for mandamus, filed in the Circuit Court of De Witt county, to compel appellee to furnish appellant with electricity for lighting his house, as is alleged, upon the same terms and conditions that it required from its other consumers. The petition alleged that appellee refused to connect its wires with appellant's house unless he would pay for a transformer or converter, in addition to the usual charge for electric lighting, which payment appellant refused to make, on the ground that appellee did not require it of its other consumers, but furnished them a transformer without any additional charge. A jury heard the evidence and found the facts specially. On the findings by the jury and on the propositions of law afterward submitted and held, the court awarded the writ of mandamus. Appellee appealed to the appellate court, for the third district, which court reversed the judgment of the Circuit Court, and the petitioner appealed to this court. The facts as found by the jury are, substantially, that appellant applied to appellee to furnish electricity for lighting his residence upon the same terms and conditions required by it from other consumers, and that appellee refused to do so; that appellee had not required other persons to pay for the use of transformers for dwellings, and that it was its general practice and custom to

Snell v. Clinton Elec. L., H. & P. Co.

furnish the use of them free of charge for its customers; that it refused to furnish the use of a transformer to appellant because it had not been employed to wire his house, he having had such wiring done by one not connected with appellee; that appellee refused to connect with appellant's house, on the ground that his residence was not properly wired, but the jury also found that such residence was properly wired; that appellee had furnished transformers free of cost to consumers in cases where it had furnished the wires and had done the wiring of the building for compensation, and that it considered the profit accruing to it therefrom to justify it in furnishing the use of transformers without a specific charge for them; that the object and purpose of a transformer are to protect the house from destruction by fire caused by too great a voltage of electicity, and the consequent destruction of the wires in the house. A number of propositions to be held as law were offered by appellee, some of which were held as law by the court and some refused. One refused was, "Upon the findings of the jury the peremptory writ should be denied, and judgment rendered against the petitioner (the appellant) for costs."

E. J. Sweeney, for appellant.

Warner & Lemon, for appellee.

Opinion by CARTER, J.:

The trial court evidently held that the law applicable to the facts as found by the jury justified the awarding of the writ, for it refused to hold the proposition of law submitted on that question by appellee, while the appellate court was of the contrary opinion, for it made no finding of facts different from those found by the jury and the court below. The only question here is, therefore, whether or not, upon the evidence as found, the appellee made an unjust discrimination against appellant in charging him for a transformer in addition to the regular rates for electric lighting.

There is no statute regulating the manner under which electric light companies shall do business in this State. They are therefore subject only to the common law and such regulations as may be imposed by the municipality which grants them priviliges. At common law, whether or not a difference in the treatment accorded to different patrons amounts to a discrimination must depend upon the surrounding circumstances. A mere difference does not, of necessity, constitute unlawful discrimination. Appellee, in its