Charles Simon's Sons Co. v. Maryland Tel. & Tel. Co.
| Decision Date | 24 February 1904 |
| Citation | 57 A. 193,99 Md. 141 |
| Parties | CHARLES SIMON'S SONS CO. OF BALTIMORE CITY et al. v. MARYLAND TELEPHONE & TELEGRAPH CO. OF BALTIMORE CITY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; J. Upshur Dennis Judge.
Suit by the Charles Simon's Sons Company and others against the Maryland Telephone & Telegraph Company of Baltimore City. From a judgment sustaining a demurrer to the complaint plaintiffs appeal. Reversed.
Argued before McSHERRY, C.J., and FOWLER, PAGE, PEARCE, and JONES JJ.
John Stonewall J. Healy, Michael A. McCormick, and Joseph C. Judge (John K. Cowen and J. Walter Lord, on the brief), for appellants.
Wm. L Marbury and Edgar H. Gans, for appellee.
This suit was instituted in the court below by the appellants against the appellee corporation for an injunction upon the allegations and for the purposes set out in their bill of complaint. The appellee demurred to the bill, thus admitting the truth of the facts therein alleged as far as the same are well pleaded. The court below sustained the demurrer, and dismissed the bill. This action of that court is before us for review upon this appeal.
The facts with which we will be concerned in the inquiry we are to make, as they are made to appear from the record of proceedings before us, are as follows: The appellee is a corporation formed and organized under the general incorporation laws of the state. The original act of incorporation was obtained in January, 1890. This provided that the name of the corporation should be the "Writing Telegraph Company of Baltimore City," and stated the object thereof to be "constructing, owning, and operating telegraph lines in the state, *** the transaction of a general telegraph business, *** and the transaction of any business in which electricity over or through wires may be applied to any useful purpose." By an amendment to the charter in July, 1895, the name of the corporation was changed to "Home Telephone & Telegraph Company of Baltimore City," and by a further amendment in May, 1899, the name was changed to that by which the corporation is sued in the present proceeding, "Maryland Telephone & Telegraph Company of Baltimore City," and the object of the corporation as respects the operation of a telephone system was more specifically stated. Prior to the last amendment, and under the name "Home Telephone & Telegraph Company of Baltimore City," the corporation applied to the city of Baltimore for permission to construct and maintain its "lines of wire and electrical conductors under, upon, or over the public streets, alleys, conduits, and other public places" of the city in order to transact and carry on its telephone business therein. On the 1st of July, 1896, the city of Baltimore, by Ordinance No. 110, granted this permission. The ordinance is styled: "An ordinance granting permission to the Home Telephone and Telegraph Company of Baltimore City to use for its telephone wires the ducts in the conduits of the police and fire alarm telegraph system, not needed for the city's use, and authorizing said company to extend its system in the territory not covered by the said police and fire alarm telegraph conduits, subject to certain conditions and restrictions, and authorizing the mayor to rent all space in said conduits not promptly occupied by said the telephone company to such other persons or corporations as may desire to use the same." Following this is a preamble which recites that "the telephone has become almost a necessity of modern life in cities"; that "there is very great need of a cheaper telephone service in Baltimore City, the number of telephones being very small in proportion to the population on account of the very high prices demanded by the company which now has a monopoly of the telephone business here"; that such company had given official notice to the public through the report of the telephone commission to the General Assembly on January 6, 1896, that "it will not and cannot reduce its rates for telephone service"; that "at the present rates the telephone, although greatly needed in business, is beyond the reach of persons of ordinary means, and the use of it is confined to a favored few, who have the means of paying the high prices charged"; that "it would be a great boon to the persons of moderate means, and a very great advantage to the business community at large, to have a cheaper telephone service"; that "the Home Telephone & Telegraph Company of Baltimore City has declared itself ready and willing to supply such a service at rates very much lower than those now prevailing"; that the subways heretofore constructed by the city of Baltimore for the wires of the police and fire-alarm telegraph system of the city are "capable of containing numbers of wires over and above the number of ducts required for the city's use"; and that these ducts produce no revenue to the city, but can be made a source of revenue if leased to the Home Telephone Company. The ordinance then grants permission to said telephone company to use the ducts, etc., mentioned in its title and preamble for the purposes of its business, and prescribes the regulations and conditions under and subject to which such permission is granted. Among these are the following (being section 4 of the ordinance) "That the rights and privileges hereby granted are granted subject to the following conditions, namely": "That the prices to be charged by the said Home Telephone and Telegraph Company of Baltimore City shall not be more than four dollars per month for telephones furnished to business offices, and not more than three dollars per month for telephones furnished at dwelling houses within the corporate limit of Baltimore City, and to the further express condition that all the rights and privileges hereby and herein granted shall cease and be forever forfeited, in case the said Home Telephone and Telegraph Company of Baltimore City shall be consolidated with any other telephone company in Baltimore City, unless the terms of the consolidation provide that the consolidated company shall not charge more than above mentioned rates for the use of its telephones." It is further provided in the ordinance that the powers therein granted to the telephone company may be forfeited at the option of the city, unless the company shall have, within two years from the date of the same, not less than 2,000 telephones in actual use in the city; and that the telephone company "shall indicate its acceptance of the terms and conditions" of the ordinance "by filing a written acceptance of the same with the mayor, and filing at the same time a bond conditioned for a faithful observance of the provisions of" the "ordinance in the penalty of ten thousand dollars," etc. After the passage of the ordinance the telephone company therein mentioned filed its bond as required thereby, and its acceptance of the same, addressed to the mayor, in the office of the comptroller of the city. The grant of the use of the subways and ducts of the city for the purposes of the telephone company was made for "the period of ten years and until such time as the city's general subway system is ready for use in the localities now covered by the subways of the police and fire-alarm telegraph system," and subject to a rental to be paid the city as provided in the ordinance. The appellants are four in number, all citizens of Baltimore, all having business establishments and conducting business therein, and all having need, for the purposes of business, of the use of some telephone system. They sue for themselves and all others in like situation with themselves as respects the use of the telephone and their relations to the appellee. It appears, rather inferentially than by direct averment, that all of the appellants had, with the appellee, prior to 1903, contracts for telephone service at the rate named in section 4 of the Ordinance 110, under which apparatus and equipments, with what is known as the "metallic circuit," had been installed in their several business establishments. The appellee now refuses to furnish the appellants, or any of them, the telephone service mentioned at the rates specified in the ordinance, and it is alleged is threatening some of them with a discontinuance of service to them, and a removal of the telephone instruments and equipments from their places of business, unless they agree to pay for said service at the rate of $72 per annum; and as to others has, by such threats, extorted from them contracts, made under protest, to pay for such service at the said rate. The prayer of the bill, in substance, is that the appellee be restrained from the aforesaid threatened action, and from demanding and receiving from the appellants the excess of charge for telephone service, such as is mentioned in the bill, over the rate provided in Ordinance No. 110; and that the appellants and others in like situation with them, as respects the matters in controversy between them and the appellee, be decreed entitled to demand and receive from the appellee the kind of telephone service mentioned in the bill of complaint at the rate of charges provided in said ordinance.
Among the grounds of demurrer to the bill the third in order is "that no contract is stated in said bill whereby the defendant is obliged to furnish the plaintiffs, or any of them, telephones and telephone service of the kind described in said bill"; and the fourth ground is "that by a proper construction of Ordinance 110, stated in said bill the defendant is not obliged to furnish telephones and telephone service of the kind described in said bill to plaintiffs (appellants), or any of them, at the rates claimed in said bill." The matters embraced in these grounds of demurrer...
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