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

answer to appellant's petition, avers that the purpose and office of a transformer is chiefly for the protection of the house or building connected with the electrical system; that it prevents an excessive number of volts of electricity from passing from the main street wire into the building to be lighted; that the wires usually used inside a building are much smaller than the street wires, and incapable of safely carrying so many volts of electricity as pass along the street wires; that if all the voltage carried on the street wires were turned into the residence the natural consequence would probably be that the house wires would melt, and the heat from the excessive voltage would cause a fire; that it is to prevent this result that a transformer is necessary. A transformer or converter is described by counsel as a coil of copper wire contained in a sheetiron box, and is usually placed on a pole outside of the building. Its office is to reduce the current from the main line, or, rather, to induce a lesser current in the wire leading to the house for house use. In this case the voltage would have been reduced from 1,000 volts to 50 or 100 volts. It appears that without the use of a converter the effect of turning this large voltage into a house would be to burn up the wires, and in the formation of short circuits there would be great danger of fire, and that the object of the converter is the protection of the house. It is a necessary appliance for the safe lighting of houses. The appellee had. been in the habit of furnishing transformers, as needed, without any extra charge, for all houses which were wired for electricity by it, but claimed the right to charge for transformers in cases where it did not do the wiring, as it made no profit on the wiring in such cases. The transformer is just as much a necessary appliance in lighting houses as the pole on which it is fastened, or the wire that carries the electricity, or the boilers and dynamo used in generating it. It is entirely immaterial who does the wiring of the house,-the electric light company or some other party; the transformer is necessary in either case. If the company does the wiring, that is a business distinct from that of furnishing electricity for lighting purposes, just as the putting in of gas and water pipes into a house is a disVOL. VIII-56

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

tinct business from furnishing the gas or water to flow through them.

The jury found that the appellee had not demanded extra pay for the use of a transformer from any one else, and that it was its general practice and custom to furnish them free to its consumers. Appellee, being organized to do a business affected with a public interest, must treat all customers fairly and without unjust discrimination. While it is not bound, in the absence of statutory enactments, to treat all its patrons with absolute equality, still it is bound to furnish light at a reasonable rate to every customer, and without unjust discrimination. In 29 Am. & Eng. Enc. Law, 19, it is said:

"The acceptance by a water company of its franchise carries with it the duty of supplying all persons along the line of its mains, without discrimination, with the commodity which it was organized to furnish. All persons are entitled to have the same service on equal terms and at uniform rates."

In commenting on this, the Supreme Court of North Carolina, in Griffin v. Water Co., 30 S. E. 319, 41 L. R. A. 240, says:

"If this were not so, and if corporations existing by the grant of public franchises and supplying the great conveniences and necessities of modern city life, as water, gas, electric light, street cars, and the like, could charge any rates, however unreasonable, and could at will favor certain individuals with low rates and charge others exorbitantly high, or refuse service altogether, the business interests and the domestic comfort of every man would be at their mercy. . . . The law will not and cannot tolerate discrimination in the charges of these quasi public corporations. There must be equality of rights to all and special privileges to none."

In Cincinnati, H. & D. R. Co. v. Village of Bowling Green, 49 N. E. 121, 41 L. R. A. 422, the Supreme Court of Ohio said:

"The light and power company have acquired in the village rights that are in the nature of a monopoly. Both reason and authority deny to a corporation clothed with such rights and powers and bearing such relation to the public the power to arbitrarily fix the price at which it will furnish light to those who desire to use it. The company was bound to serve

all of its patrons alike. It could impose on the plaintiff in error no greater charge than it exacted of others who had used its lights."

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

In Gaslight Co. v. Hildebrand, and Electric Co. v. Hildebrand, 42 S. W. 351, the Court of Appeals of Kentucky said:

"Practically they have a monopoly of the business of manufacturing and furnishing gas within the corporate limits of the city. It is therefore their duty to furnish the city's inhabitants with gas, and to do so upon terms and conditions common to all, and without discrimination. They cannot fix a variety of prices or impose different terms and conditions, according to their caprice or whim.”

It has been held at common law, and, in the absence of statutes, in the case of common carriers, that, as long as they carry at a reasonable rate for every shipper, no one can complain if they are willing to carry for others at a less rate. 5 Am. & Eng. Enc. Law (2d ed.) 179. If we apply this rule to the case at bar, it will be noticed that the appellee has demanded of appellant more than it has of any of its other customers. This is not the favor allowed by the common law, as just cited, but an unjust discrimination. Appellee has discriminated unjustly against appellant in any view of the law and the circumstances that we can take, and it follows that the judgment of the Circuit Court was right.

The judgment of the appellate court will be reversed, and the judgment of the Circuit Court affirmed. Judgment reversed.

Western Union Telegraph Co. v. Austin.

TRANSMISSION AND DELIVERY OF TELEGRAPHIC MESSAGES.

WESTERN UNION TELEGRAPH Co. v. AUSTIN.

Kansas; Supreme Court.

1. POWER OF COURT OF VISITATION OVER TELEGRAPH COMPANIES.-Chapter 38 of the Laws of 1898, extending the power, jurisdiction and control of the court of visitation over the telegraph companies and telegraph service within the State, is in pari materia with chapter 28 of the Laws of 1898, which created the court of visitation and attempted to extend its powers, jurisdiction and control over the railways of the State, and must be construed in connection with that act, as though the two chapters constituted but one act. Chapter 28 of the Laws of 1898 having been held unconstitutional as applied to railways, for the same reasoning chapter 38 is also unconstitutional as applied to telegraph companies.

2. CONSTITUTIONALITY OF PROVISION IMPOSING PENALTY FOR DELAY IN TRANSMITTING TELEGRAPHIC MESSAGES.-Section 7 of chapter 38 of the Laws of 1898, provides a forfeiture for failure, neglect or refusal of a telegraph company to receive, transmit and deliver, without unnecessary delay, any telegraphic message tendered under the provisions of that act. It was contended that the provisions of section 7 were not affected by the invalidity of the remaining portions of the act; but it was held that since the penalty was for unnecessary delay in transmitting messages presented after payment or tender of the charges fixed in the act, the intent of the Legislature was that the whole subject of telegraphic service, including the rates to be charged, should be under the direct control of the court of visitation created by the act, and that, therefore, the penalty imposed by this section for a noncompliance with the rulings of a body having no legal existence, is inoperative.

Error by defendant from judgment for plaintiff. Decided June 6, 1903; reported 72 Pac. 850.

Rossington, Smith & Histed and Geo. H. Fearons, for plaintiff in error.

Austin & Hungate, E. D. McKeever, and A. C. Markley (Stebbins & Evans, of counsel), for defendant in error.

Western Union Telegraph Co. v. Austin.

Opinion of POLLOCK, J.:

The Legislature of the State, convened by the governor in extra session, in 1898, created the court of visitation, and by chapter 28, page 76, of the laws of that session, attempted to confer upon that body the exercise of administrative, legislative and judicial powers and jurisdiction over the railways of the State. By chapter 38, page 117, of the laws of that session, the same power and jurisdiction conferred upon the court of visitation over railways was extended over the telegraphs of the State. Section 1 of that act reads as follows:

"That from and after the taking effect of this act the court of visitation shall have the same power, jurisdiction and control over all questions concerning the regulation of the telegraph service in this State, the reasonableness of charges herein fixed, or to be fixed, by any order of said court, and in all matters concerning the regulation, management or control of telegraph companies, as is conferred upon said court of visitation in reference to railroads or railway corporations in this State."

Section 2 of the act (page 118) fixes the rates to be charged for the transmission and delivery of messages, as follows:

"That no person, company or corporation owning or operating any telegraph line in this State shall demand, charge or receive, directly or indirectly, a rate in excess of fifteen cents for the first ten words (exclusive of address and one signature), and one cent for each additional word, for transmitting any message between points within this State. And no such person, company or corporation shall demand, charge or receive, for any distance between points within this State, more than one-third of one cent for each word for messages of over ten words received between the hours of 6 o'clock a. m. and 6 o'clock p. m., and one-sixth of one cent per word for messages received between the hours of 6 o'clock p. m. and 6 o'clock a. m. to be transmitted as special reports for newspapers."

Section 7 (page 119) makes provision for a forfeiture and its collection for the failure, neglect, or refusal to receive, transmit, or deliver, without unnecessary delay, any messages under the terms of the act, as follows:

"Any person, company or corporation engaged in the business of receiving and transmitting telegraphic messages within the State refusing, failing or neglecting to receive (either from the person sending the same or any connecting line), transmit and deliver, without unnecessary delay, any message