Central Union Telephone Company v. State ex rel. Falley

• Decision Date: 22 January 1889
• Docket Number: 14,269
• Parties: The Central Union Telephone Company v. The State, ex rel. Falley
• Court: Indiana Supreme Court

19 N.E. 604

118 Ind. 194

The Central Union Telephone Company v. The State, ex rel. Falley

No. 14,269

Supreme Court of Indiana

January 22, 1889

Petition for a Rehearing Overruled April 3, 1889.

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

J. R Coffroth, T. A. Stuart and A. A. Thomas, for appellant.

W. D Wallace, S. P. Baird and F. S. Chase, for appellee.

OPINION

Olds, J.

This is an action, brought by the relatrix, to compel the appellant, by mandate, to furnish her, at her place of business in the city of Lafayette, a telephone and telephonic connections and facilities. The petition is in one paragraph, averring the following facts: That the defendant, the Central Union Telephone Company, is a corporation duly organized under the laws of the State of Illinois; that it is now, and was at the time of the doing of the acts and things hereinafter complained of, and for three years last past has been, owning and operating a system of telephone lines and wires, and engaged in doing a general telephone business in the city of Lafayette, county of Tippecanoe, State of Indiana; that the relatrix, Susana B. Falley, is now, and for more than three months last past has been, carrying on business under the name and style of the "Falley Hardware Company," and the occupant of a business room in said city, at numbers 37 and 39 on South Third street therein, and her business room is within the limits of the defendant's telephone business in said city; that the relatrix did, on the 25th day of October, 1887, demand of the defendant that said relatrix be furnished by said defendant with a telephone and telephonic connections and facilities necessary to place the relatrix, at her said business room, in telephonic connection with the patrons of defendant in said city; that the relatrix did then, and at the time of making said demand, tender to the defendant the sum of nine dollars, lawful currency of the United States, as a rental in advance for such telephone, telephonic connections and facilities, for the first three months' use thereof, and at the same time relatrix offered to comply with the reasonable rules and regulations of said defendant, not inconsistent with the laws of this State; that the defendant at the time said demand was made refused, and ever since has wilfully, wrongfully and without cause, failed and refused, and still fails and refuses, to furnish to said relatrix, at her said business room, the use of such telephone and telephonic connections and facilities; that the defendant is a common carrier of telephonic messages between its patrons within the limits of said city of Lafayette, and that said relatrix, under the laws of the State of Indiana, is entitled to demand and receive from the defendant the use of the telephone and telephonic connections, facilities and service, necessary to place the relatrix, at her said business room, in telephonic communication with the patrons of defendant in said city, for the compensation of three dollars per month, as fixed and prescribed by the statute of said State, and for such compensation she is entitled to receive from the defendant the use of a telephone, and the highest and best grade of telephonic connections, facilities and service, used and furnished by said defendant in carrying on its business in said city. Prayer for an alternative writ of mandate, and, on final hearing, a peremptory writ compelling defendant to furnish relatrix with such telephone and telephonic connections, facilities and service, which petition was duly verified. Alternative writ of mandate issued upon the complaint in due form, setting forth the filing of the complaint and the allegations of the complaint, and concluding by commanding the appellant to furnish the relatrix with a telephone and telephonic connections and facilities as asked, or in default thereof to appear before the court and show cause.

In answer to the writ, appellant appeared by attorneys and demurred to the writ for the cause that the writ did not state facts sufficient to constitute a cause of action, which demurrer was overruled, to which ruling of the court on the demurrer appellant excepted. Appellant then filed an answer in five paragraphs. The first is a general denial, and the other paragraphs allege the following facts:

2d. The defendant avers that it is a corporation, under the laws of Illinois; that for several years prior to the demand by plaintiff, as alleged in the complaint, defendant had been engaged in carrying on its business as a telephone company in the States of Indiana, Ohio, Illinois and Iowa; that long before, and at the time of, the happening of the things complained of in plaintiff's complaint, defendant had, ever since had, and now has, its lines and wires on its poles in the city of Lafayette, and in various cities and towns in the States aforesaid, and during all of said time, and still has, offices in said various cities and towns in each of said States, connected with each other, and many of its offices and telephones in this State are connected by means of its wires with defendant's offices and instruments in the States of Ohio, Illinois and Iowa; that defendant, during all of said time, was, has been, and is engaged in transmitting messages for the public for hire over its said wires, not only between towns and cities in each of said States, but also between the several States aforesaid; and during all of said time defendant has been, and is, engaged in, and carrying on, interstate commerce; that it admits that plaintiff, claiming that, under the act of the General Assembly of the State of Indiana, she was entitled to have a telephone in her store, and to be furnished with telephonic service under said law, tendered defendant nine dollars, and demanded to have a telephone in her store; and defendant admits that it refused to furnish relatrix with a telephone, and with telephonic connections and service, because if defendant had complied with said request and demand she would thereby be furnished facilities for transmitting messages from Lafayette to various places in the States of Ohio and Illinois, where defendant had and has its wires and offices, as aforesaid, for said sum of money, which was unreasonable and greatly less than defendant charges its other customers, and which, as defendant was engaged in carrying on interstate commerce, could not be required of it.

3d. The third paragraph states that it, defendant, is a corporation under the laws of Illinois, and is engaged in carrying on a general telephone business in the city of Lafayette; that, on the 2d day of March, 1886, it in good faith announced to the public, and it was then its intention, from and after the 2d day of March, 1886, not to furnish telephones under a rental system, except as it did so until its contracts then in existence expired; that at said time it had a large number of contracts with its various subscribers in the city of Lafayette for the use of its telephones, by the terms of which defendant was compelled to maintain its exchange in said city, and furnish telephone facilities to said persons until the 30th day of September, 1886; that defendant treated all applications for telephones and telephonic service alike that, in good faith, and without discrimination, having determined to cease doing a general rental telephone exchange business in this State, it refused to furnish telephones and telephonic connections under a general rental telephone exchange system, except to those with whom it had contracts, as aforesaid; that it admits the demand and tender by relatrix, and the refusal by defendant to furnish her with a telephone, because it had determined to cease, and had in fact ceased, doing a general rental telephone exchange business in said city, and so informed relatrix, and since that time has not been, and is not, engaged in a general telephone business under a rental system in said city; that after it had announced its determination to cease doing a general rental telephone exchange business, it, in June, 1886, determined to offer to the public, and did in fact offer to the public, to furnish telephonic service and connections by means of public toll-stations at various points in said city, which system of public toll-stations defendant had in operation at and long before the time of the demand by relatrix for telephone and telephonic connections. Defendant denies that it owns or operates a telephone exchange under the rental system in said city of Lafayette, Indiana, or that it did at the time of the commencement of this action; that, although it had formerly conducted a telephone exchange under the rental system, it abandoned and terminated the same as soon as its contracts in existence were terminated. The defendant avers that what is known as a telephone exchange under a rental system, is where lines and telephone instruments are furnished to subscribers for private use, under contracts limiting the use of the facilities furnished to such subscribers and their employees, for a stipulated rental per month, quarter or year, and in which the instruments furnished pass into the possession of such subscribers; the lines so furnished to subscribers center at a switching-station, where the line of any subscriber is connected with that of any other subscriber, on request, for purposes of communication, authorized by the contract. In the exchange system, a set of telephone instruments, connected by a wire with the central station, is furnished to any reputable person who desires to become a subscriber to the exchange, and signs the usual form of contract, and complies with its conditions. A public toll system of telephone service is one where the telephone company furnishes...