Batesville Telephone Co. v. Public Service Commission

• Decision Date: 24 February 1930
• Docket Number: No. 1167.,1167.
• Citation: 38 F.2d 511
• Parties: BATESVILLE TELEPHONE CO. v. PUBLIC SERVICE COMMISSION OF INDIANA et al.
• Court: U.S. District Court — Southern District of Indiana

38 F.2d 511 (1930)

BATESVILLE TELEPHONE CO. v. PUBLIC SERVICE COMMISSION OF INDIANA et al.

No. 1167.

District Court, S. D. Indiana, Indianapolis Division.

February 24, 1930.

COPYRIGHT MATERIAL OMITTED

Michael F. Bohland, of Batesville, Ind., and Thompson, Rabb & Stevenson, of Indianapolis, Ind., for plaintiff.

James M. Ogden, Atty. Gen., George W. Hufsmith, Asst. Atty. Gen., Francis M. Thompson, of Versailles, Ind., and Jackson & Jackson, of South Bend, Ind., for defendants.

BALTZELL, District Judge (after stating the facts as above).

This action was begun on the 10th day of December, 1928, wherein plaintiff seeks to enjoin the Public Service Commission of Indiana, the individual members thereof, the Attorney General, the Farmers' Mutual Telephone Company, and various individuals and representatives of the Farmers' Mutual Telephone Company, from enforcing or attempting to enforce, directly or indirectly, the order of such Commission entered under date of November 23, 1928. Plaintiff also seeks to enjoin the defendant telephone company, its officers, and all other present or prospective patrons thereof, from connecting the lines of such company physically with the lines of any resident of the town of Versailles; from furnishing telephone communication between residents of the town of Versailles and such telephone exchange located outside the corporate limits thereof; and from furnishing telephone service between any one or more residents of the town of Versailles and other residents of such town. Plaintiff further seeks to enjoin all defendants from establishing and maintaining through any instrumentality whatsoever, either directly or indirectly, competition with the plaintiff in the rendition of telephone service within the town of Versailles.

For convenience, the defendant Public Service Commission will hereafter be referred to as the "Commission," and the defendant the Farmers' Mutual Telephone Company will be referred to as the defendant "Telephone Company." The Shively-Spencer Utility Commission Act will be referred to as the Utility Act.

The jurisdiction of this court is invoked upon the theory that the enforcement of the order of the defendant Commission under date of November 23, 1928, will deprive plaintiff of its property without due process of law and will deny to plaintiff the equal protection of the law in violation of its rights guaranteed under the Fourteenth Amendment to the Constitution of the United States. The contention of plaintiff is that an enforcement of such order will permit all users of telephones of the town of Versailles, if they so elect, to connect with the exchange of the defendant Telephone Company, thereby creating intercommunication between all residents of such town, and will virtually destroy the value of plaintiff's property therein; that such order is void and of no effect, because the defendant Commission did not grant and give to this plaintiff a fair trial at the time of the hearing upon which such order was granted; that because of such order being void, the property of the plaintiff will be taken without due process as guaranteed by the Fourteenth Amendment to the Federal Constitution.

The plaintiff, having heretofore complied with the provisions of the Utility Act, is subject to the supervision and control of the defendant Commission in so far as the rates, service, etc., are concerned. It is entitled to charge the rates as fixed by the Commission and must render service to its patrons. The Commission, however, is authorized by the Utility Act to grant to another "public utility" furnishing telephone service, a certificate of public convenience and necessity, thereby authorizing such other utility to operate a telephone exchange, etc., within the limits of the town of Versailles. Provision is made in section 97 of the Utility Act for the issuance of such a certificate, as follows: "No license, permit or franchise shall be granted to any person, copartnership or corporation, to own, operate, manage or control any plant or equipment of any public utility in any municipality where there is in operation a public utility engaged in similar service under a license, franchise or permit without first securing from the commission a declaration, after a public hearing of all parties interested, that public convenience and necessity require such second public utility. * * *" Burns' Ann. St. 1926, § 12770.

Section 1 (1) of the Utility Act defines a "public utility" to be "every corporation, company, individual, association of individuals, * * * that now or hereafter may own, operate, manage or control * * * any plant or equipment within the state for the conveyance of telegraph or telephone messages * * * either directly or indirectly, to or for the public." Burns' Ann. St. 1926, § 12672.

The first question that presents itself to the court for consideration is whether or not the defendant Telephone Company is a "public utility" as that term is defined in the Utility Act. If it is not a public utility, then the Commission has no jurisdiction over it, and the order entered on November 23, 1928, is void and of no effect. Under the evidence, the defendant Telephone Company owns and operates a telephone exchange to which is connected several rural lines. The exchange is located outside the corporate limits of the town of Versailles, and all its lines, at the present time, are outside the...