Central Union Telephone Co. v. Fehring

• Decision Date: 06 November 1896
• Docket Number: 17,864
• Parties: Central Union Telephone Company v. Fehring
• Court: Indiana Supreme Court

45 N.E. 64

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

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.

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 was proper to name in the title the common carriers covered by the provisions of the act. This act, therefore, embraces but one subject, that of regulating a certain class of common carriers and matters properly connected therewith, and is not invalid for the reason urged..

It is next insisted that the complaint does not state a cause of action within the meaning of said section 2 of said act, section 5529, supra.

The allegations show, among other things, that appellant, at the time stated, owned and operated a general system of telephone lines in the city of Columbus, Indiana; that appellee had one of the appellant's telephones in his drug store, and desiring to converse with another patron of appellant, called upon the exchange and asked to be connected with said other patron, which connection was refused by appellant. Appellant urges that the section upon which appellee predicates this action applies to discrimination between applicants for telephones, not to discrimination between patrons of a telephone company. In other words, appellant's contention is that the act requires telephone companies to furnish an instrument and connect it with its exchange, when applied for without discrimination, but when this is done, the duty of the company to such person, under the act, ceases, and that no penalty can be recovered under said act for a refusal to furnish the connection and facilities by which he can use the instrument.

We think it clear, under the provisions of the section in controversy, that telephone companies are not only required to furnish an applicant the instrument and properly connect the same with its exchange, but it is also their duty to supply all the connections and facilities necessary to the use of such instrument. The section provides that "Every telephone company * * * shall within the local limits of such telephone company's business...