45 N.E. 64 (Ind. 1896), 17,864, Central Union Telephone Co. v. Fehring

Docket Nº17,864
Citation45 N.E. 64, 146 Ind. 189
Opinion JudgeMonks, C. J.
Party NameCentral Union Telephone Company v. Fehring
AttorneyMarshall Hacker and Charles F. Remy, for appellant. Geo. W. Cooper and C. B. Cooper, for appellee.
Case DateNovember 06, 1896
CourtSupreme Court of Indiana

Page 64

45 N.E. 64 (Ind. 1896)

146 Ind. 189

Central Union Telephone Company

v.

Fehring

No. 17,864

Supreme Court of Indiana

November 6, 1896

From the Bartholomew Circuit Court.

Affirmed.

Marshall Hacker and Charles F. Remy, for appellant.

Geo. W. Cooper and C. B. Cooper, for appellee.

OPINION

Page 65

[146 Ind. 190] Monks, C. J.

This action was brought by appellee, against appellant, to recover the statutory penalty under section 5529, Burns' R. S. 1894 (section 2, p. 151, Acts 1885), for failure and refusal on the part of appellant to supply appellee with "telephone connection and facilities without discrimination or partiality."

The complaint was in two paragraphs, which were substantially the same, except the offense was alleged on different days. Appellant's separate demurrer for want of facts to each paragraph of complaint was overruled. An answer in three paragraphs was filed, to which a reply of general denial was filed. The cause was tried by jury, and a general verdict rendered in favor of appellee, and his damages assessed at $ 100.00, and over a motion for a venire de novo, and a motion for a new trial, judgment was rendered in favor of appellee.

[146 Ind. 191] The first objection urged to the complaint is, that the act upon which the cause of action is based embraces more than one subject, telegraph companies and telephone companies, and is therefore unconstitutional, under the provisions of section 19, Art. 4, of the constitution (section 115, R. S. 1881, 115, Burns' R. S. 1894). The act in question is entitled, "An act prescribing certain duties of telegraph and telephone companies, * * * providing penalties therefor, and declaring an emergency." Acts 1885, p. 151.

This court has held that a telephone company doing a general telephone business is a common carrier of news in the sense in which a telegraph company is a common carrier, and that section 2, p. 151, Acts 1885, section 5529, supra, prescribes the duties of telegraph and telephone companies as such common carriers. Central, etc., Telephone Co. v. Bradbury, 106 Ind. 1, 5 N.E. 721, and cases cited; Central, etc., Telephone Co. v. State, ex rel., 118 Ind. 194, 10 Am. St. Rep. 114, 19 N.E. 604.

The subject of the act is neither telegraph nor telephone companies, but the act prescribes the duties of such companies as common carriers. It...

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