Clinton-Dunn Telephone Co. v. Carolina Telephone & Telegraph Co.

Decision Date17 April 1912
Citation74 S.E. 636,159 N.C. 9
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Sampson County; Peebles, Judge.

Action by the Clinton-Dunn Telephone Company against the Carolina Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Mandamus will lie to enforce the performance of the duties of a telephone company existing for the benefit of the public.

Civil action to compel defendant company to restore telephone connection of plaintiff company with the local exchange of defendant company in Dunn, N. C., and supply service in that town for plaintiff and subscribers, pursuant to a contract set forth and described in the complaint. The cause was heard on a rule to show cause, obtained in term and returnable before his Honor, R. B. Peebles, Judge, holding the courts of the Sixth district, at Wilmington, N. C., on June 3, 1911 and, on affidavits and proofs offered, it was adjudged that on plaintiff's entering into a justified bond in the sum of one thousand dollars conditioned to pay all costs and damages arising by reason of the order, in case same should be set aside, the connection be restored as prayed for and the services rendered free of charge to plaintiff and its subscribers, according to the terms of the contract referred to. Both parties having consented that the hearing could be continued and issue determined outside of Wilmington, the judgment was signed and entered at Beaufort, N. C., on July 5, 1911, and defendant, having duly excepted, appealed to Supreme Court.

J. C Clifford and G. M. T. Fountain & Son, for appellant.

Faison & Wright, for appellee.

HOKE J. (after stating the facts as above).

On the hearing it was made to appear: That in 1901 E. F. Young and wife owned and operated for charge a local telephone system in the town of Dunn, N. C., and plaintiff, a corporation acting under a quasi public franchise, owned and operated a like system in the town of Clinton, N. C., and was extending its line towards Dunn. That on February 15th of that year the said Young and wife entered into a contract with plaintiff in consideration of $10, and that plaintiff company would pay for two-thirds of the poles from the corporate line of Dunn to the local exchange in the town and of mutual stipulations in the agreement, whereby the said plaintiff company could physically connect its system with the local exchange in Dunn, and the patrons of the Dunn system, for a single charge of 25 cents, could send messages to Clinton and have service for local delivery in that town without further charge, and plaintiff and its subscribers should have like privilege and service in reference to local delivery in Dunn. The agreement stipulated, further, "that the parties shall quietly enjoy the same and that this contract shall remain in full force and effect from and after the signing and sealing of the same and the successors and assigns of each shall forever quietly enjoy the privileges granted by the contract; that the toll fees of each shall be 25 cts. from exchange to exchange and that local messages shall be settled and established by each so that the fees charged shall not exceed 25 cts.; *** that this contract shall not be revoked or changed without the consent and the same mutually agreed to by each, their successors and assigns. In testimony whereof etc." That the physical connection was then made, the parties entered into the enjoyment and exercise of the privileges conferred by the contract, and continued therein until October, 1901, when Young and wife sold and conveyed their system and all rights, etc., held by them to defendant company, a corporation acting also under a quasi public franchise and owning and operating an extended system of telephone lines in the eastern part of the state. That the purchaser entered into the exercise of the rights conferred by the contract with plaintiff and physical connection being continued, and stipulated service afforded by each until February, 1910, when defendant, having, as stated, acquired the plants of various companies in the eastern part of the state and claiming to have spent large sums of money in improving these lines, giving them better equipment and affording a higher order of service, wrote plaintiff company, saying that the contract was not considered as binding on defendant. That it had not been made by the company. That it was unfair in its obligations and burdens, and discriminative in its terms and operation. The letter stated, further: That the rights conferred had been abused on the part of plaintiff company, by extending the privileges granted to other lines and systems not included in the agreement, and contained formal notice that, unless within 30 days plaintiff entered into a contract agreeing to pay $72 per annum for service in Dunn to plaintiff and its subscribers and $72 additional per annum for each additional system, exercising the privileges of the contract, and by plaintiff's permit or procurement, the connection with plaintiff company would be discontinued. That, this demand not having been complied with, defendant severed the connection with plaintiff's system, depriving plaintiff and its subscribers and patrons of all service and telephone connection with Dunn and its inhabitants or any possibility of procuring the same except on defendant's terms. On these, the facts chiefly relevant to the inquiry, we think the court below correctly ruled that plaintiff was entitled to have the connection restored and service afforded, but that the order should be modified or so interpreted that the rate at which this service shall be rendered must be made to depend upon further findings of fact, to be had and made in the cause.

It is very generally recognized that a telephone company, acting under a quasi public franchise, is properly classified among the public service corporations, and as such is subject to public regulation and reasonable control, and is required to afford its service at uniform and reasonable rates and without discrimination among its subscribers and patrons for like service under the same or substantially similar conditions. Godwin v. Telephone Co., 136 N.C. 258 48 S.E. 636, 67 L. R. A. 251, 103 Am. St. Rep. 941, 1 Ann. Cas. 203; Leavell v. Western Union, 116 N.C. 211, 21 S.E. 391, 27 L. R. A. 843, 47 Am. St. Rep. 798; Horner v. Electric Co., 153 N.C. 535, 69 S.E. 607, 138 Am. St. Rep. 681; Griffin v. Water Co., 122 N.C. 206, 30 S.E. 319, 41 L. R. A. 240; Commercial Union Telegraph Co. v. Telephone & Telegraph Co., 61 Vt. 241, 17 A. 1071, 5 L. R. A. 161, 15 Am. St. Rep. 593; Telephone Co. v....

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