Commercial Union Tel. Co. v. New England Tel. & Tel. Co.

• Citation: 61 Vt. 241,17 A. 1071
• Court: Vermont Supreme Court
• Decision Date: 27 June 1889
• Parties: COMMERCIAL UNION TEL. CO. v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

17 A. 1071

61 Vt. 241

COMMERCIAL UNION TEL. CO.

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of Vermont, General Term.

June 27, 1889.

Petition for mandamus.

Wilson & Hall, for relator. Wales & Wales, for defendant.

TYLER, J. This case was heard on the bill, answer, and agreed statement of facts. The relator and the defendant are corporations chartered and existing under the laws of the state of New York. The former as a telegraph company, since January, 1887, and the latter as a telephone company, since January, 1886, have been doing business in this state in compliance with its laws, with offices in the town of Rutland. The defendant, for certain fixed and uniform prices, had placed its telephones in public and private buildings and places of business in said town, and connected them with its central office. It had also connected the Western Union Telegraph Company with its central office, so that the latter company and its patrons, at the date of this petition, enjoyed all the privileges and profits to be derived from such connection. In February, 1888, the relator requested the defendant to place a telephone in its office in Rutland, and connect the same with its central office, and to grant to the relator and its patrons the privileges accorded to others, tendered to the defendant payment for such use and service, and offered to comply with all reasonable rules and regulations of the defendant company. The latter refused this request for the reasons stated in its answer, and specifically set forth in the Exhibits A and B, except on the conditions mentioned in Exhibit B. The defendant is the licensee by Contract A of the American Bell Telephone Company, a corporation created by and existing under the laws of Massachusetts. It is provided in said contract that no office or line of the defendant can be connected with any telegraph wire, except by lines of the licensor or parties specially designated by it for this purpose, and that no telegraph company, unless specially permitted by the licensor, can be a subscriber of the defendant, and so entitled to the use of its telephone; that the licensor in and by said contract reserved to itself the exclusive right to build and to have built all lines connecting the various offices of the defendant with telegraph offices, and the right to operate such connecting lines; and further reserved the title and ownership of all lines which should be built, connecting the offices of said company with telegraph offices. The contract further provides that, in case of violation by the defendant of any of its terms and conditions, such violation shall, in the election of the licensor, after certain prescribed notice, work a forfeiture of all its rights under the contract, and subject the defendant to other serious loss and damage. The defendant claims in the answer that it is legally prevented and restrained from connecting any of its offices with any telegraph company's office, and from allowing any telegraph company to become one of its subscribers, except by and with the special permission of the American Bell Telephone Company, its licensor, and that such permission in this case has not been given. Said Exhibit B contains the restriction, viz.: "They are not to be used for any toll or consideration to be paid by any person, other than the subscriber, nor for furnishing any part of the work of collecting, transmitting, or delivering any message in respect of which any toll or consideration has been or is to be paid to any party other than the exchange, [respondent,] nor for transmitting market quotations or news for sale, publication, or distribution, nor for calling messengers, except from the central office, or performing any other service in competition with service which the exchange may undertake to perform."

The Western Union Telegraph Company's office in Rutland, by an arrangement with the respondent and the American Bell Telephone Company, is furnished with a telephone, and connected with the central telephone and connecting line, for the purpose of transmitting and delivering telegraph messages from the subscribers and other customers of the exchange at Rutland to said Western Union Telegraph Company, and transmitting messages from Western Union Telegraph Company to. such subscribers and customers, for the consideration of two cents for each message so delivered by telephone. Said Western Union Telegraph Company pays the respondent two cents for each message, and said American Bell Telephone Company 15 per cent. on all the tolls received for transmitting such messages over the lines of said Western Union Telegraph Company, of which 15 per cent. the respondent is to receive 50 per cent. The relator claims that the defendant, having come into this state and established a telephone system under our laws, and erected its lines and a central office in Rutland, has become a public servant,—a common carrier of speech for hire,—and is bound to serve all persons and corporations alike, upon their tender of equal pay for equal service, and a compliance with the defendant's rules and regulations. On the other hand, the defendant claims that its powers are restricted by the terms of its license; that its licensor, being the exclusive owner of its patents and property, had a right to grant to the defendant such limited use thereof as it pleased. The question here presented is not a new one. Counsel for the respective parties have, with great diligence and fairness, brought together in their briefs all the decided cases in this country that can throw light on the subject.

The principle contended for by the relator has frequently been applied to railroads and other carriers of persons and freight. It was held in Bennett v. Dutton, 10 N. H. 481, that the proprietors of a stage coach, who hold themselves out as common carriers of passengers, are bound to receive all who require a passage, so long as they have room, and there is no legal excuse for a refusal; and it is not a lawful excuse that they run their coach in connection with another coach, which extends the line to a certain place, and have agreed with the proprietor of such other coach not to receive passengers who come from that place on certain days, unless they come in his coach. In the case of Express Co. v. Railroad Co., 57 Me. 188, the defendant let to the Eastern Express Company, for four years, the exclusive use of a certain separate apartment in a car attached to each of its passenger trains for the purpose of transporting the express company's messenger and merchandise, and agreed that it would not, during the continuance of such contract, let any space in any car on its passenger trains to any other express carrier; and the defendant, before the expiration of such contract, but after reasonable notice, refused to receive upon any terms from the New England Express Company such packages as are usually carried by express companies to be transported by its passenger trains. It was held that "common carriers are bound to carry indifferently, within the usual range of their business, for a reasonable compensation, all freight offered, and all passengers who may apply. For similar equal services they are entitled to the same compensation. All applying have an equal right to be transported or to have their freight transported in the order of their application. * * * The very definition of a common carrier excludes the idea of the right to grant monopolies, or to give special and unequal preferences. It implies indifference as to whom they may serve, and an equal readiness to serve all who may apply. * * * They cannot, having the means of transporting all, select from those who may apply some whom they will, and reject others whom they can but will not carry. They cannot rightfully confer a monopoly upon individuals or corporations." See, also, Sandford v. Railroad Co., 24 Pa. St. 378. In the case of Express Co. v. Railroad Co., 8 Fed. Rep. 799, the complainant, an express company, had been for many years engaged in carrying on an express business over the defendant's railroad. No written contract was ever entered into between the parties, but the business was carried on without objection, and upon terms mutually satisfactory, until some time in the year 1880, when the defendant asserted its own right to transact all the express business upon its line, and attempted to eject the complainant therefrom. Upon the application of complainant, a temporary injunction was granted; and, upon a motion to dissolve the same, McCrary, J., said that it was the duty of the defendant, as a public servant, to receive and carry goods for all persons alike, without injurious discrimination as to rates or terms; that railroad companies must carry express packages and the messenger in charge of them, for all express companies that apply, on the same terms, unless excused by the fact that so many apply it is impossible to...