Cumberland Tel. & Tel. Co. v. Kelly

Decision Date17 March 1908
Docket Number1,741.
Citation160 F. 316
PartiesCUMBERLAND TELEPHONE & TELEGRAPH CO. v. KELLY.
CourtU.S. Court of Appeals — Sixth Circuit

This was an action to recover statutory penalties under chapter 66, Sec. 11, p. 122, Acts Tenn. 1885. That act is one granting certain privileges to telegraph and telephone companies 'and prohibiting discrimination between patrons.' The eleventh section is in these words:

'Every telephone company doing business within this state, and engaged in a general telephone business, shall supply all applicants for telephone connection and facilities without discrimination or partiality, provided such applicants comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any condition or restriction upon any such applicant that are not imposed impartially upon all persons or companies in like situations, nor shall such company discriminate against any individual or company engaged in lawful business by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant or otherwise, under penalty of one hundred dollars for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations, and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.'

The plaintiff below set out this section and averred that the defendant was a corporation carrying on a telephone business in the city of Memphis; that he resided in said city; that he applied for a direct connection at his residence, and signed an application agreeing to comply with the terms and regulations of the company on September 8, 1905; and that his application was accepted on same day. He then averred that the defendant had violated the said provision of the Tennessee Act of 1885, 'in that it failed to give him telephone connection and facilities and furnished others in the same class and in like condition as himself with telephone connection and facilities, thereby violating the above law and discriminating against him. ' He then averred that the discrimination continued until November 28 1905, and that the time within which such connection could have been supplied was 78 days; he therefore sued for the penalty prescribed by the statute for the said 78 days making an aggregate penalty of $7,800. The defendant pleaded the general issue and a special plea in these words: 'And for further plea in its behalf, defendant avers that, at the time that the plaintiff herein requested the installation of a telephone at his residence, the defendant company did not have, and could not by any due diligence have had, sufficient line and wire equipment for the installation of a telephone service at that time; and that it could not have installed said telephone any sooner than it did; and this it is ready to verify.'

There was a verdict for the full amount of $7,800. The defendant has assigned error, and sued out this writ.

E. E. Wright, for plaintiff in error.

George Harsh, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge (after stating the facts as above).

The analogy between the principle which determines the duties and responsibilities of telephone and telegraph companies and those which apply to common carriers of goods and persons is so strong that it is often said of them that they are 'common carriers of news.' The description is more applicable to telegraph companies than to telephone companies, for the one receives and sends a message, the other merely supplies the facilities by which the user may extend the compass of his own voice. Nevertheless, both telephone and telegraph companies are engaged in a quasi public service and are endowed with some of the sovereign powers of the state. Therefore it is well settled that, without regard to statute, both kinds of companies must serve the public without partiality or discrimination. In the case of the State of Missouri v. Bell Telephone Co. (C.C.) 23 F. 539, 541, Justice Brewer said:

'A telephonic system is simply a system for the transmission of intelligence and news. It is, perhaps, in a limited sense, and yet in a strict sense, a common carrier. It must be equal in its dealings with all. It may not say to the lawyers of St. Louis, 'My license is to establish a telephonic system open to the doctors and the merchants, but shutting out you gentlemen of the bar.' The moment it establishes a telephonic system here, it is bound to deal equally with all citizens in every department of business; and the moment it opened its telephonic system to one telegraph company, that moment it put itself in a position where it was bound to open its system to any other telegraph company tendering equal pay for equal service.'

In Delaware & A. Tel. & Tel. Co. v. Delaware, 50 F. 677, 2 C.C.A. 1, the Circuit Court of Appeals for the Third Circuit said:

'It is no longer open to question that telephone and telegraph companies are subject to the rules governing common carriers and others engaged in like public employment. This has been so frequently decided that the point must be regarded as settled. While it has not been directly before the Supreme Court of the United States, cases in which it has been so determined are cited approvingly by that court in Budd v. New York, 143 U.S. 517, 12 Sup.Ct. 468, 36 L.Ed. 247. While such companies are not required to extend their facilities beyond such reasonable limits as they may prescribe for themselves, they cannot discriminate between individuals of classes which they undertake to serve.'

This principle has been recognized over and over again in respect of many classes of business affected with a public interest, and cases applying to the telephone companies have been cited and approved by the Supreme Court as justifying the regulation by statute of analogous kinds of business. Budd v. New York, 143 U.S. 517, 542, 12 S.Ct. 468, 36 L.Ed. 247. The cases directly holding telephone companies to the obligation of an impartial and undiscriminating service upon common-law principles are numerous. Some of these are: Chesapeake, etc., Telephone Co. v. B. & O. Ry. Co., 66 Md. 399, 414, 7 A. 809, 59 Am.Rep. 167; Hockett v. State, 105 Ind. 250, 258, 5 N.E. 178, 55 Am.Rep. 201; Central Union Telephone Co. v. State, 106 Ind. 1, 5 N.E. 721; State v. Citizens' Telephone Co., 61 S.C. 83, 39 S.E. 257, 55 L.R.A. 139, 85 Am.St.Rep. 870. The text-writers state the duty in the same way. Joyce on Electric Law, vol. 2, Sec. 520; James on Telegraphs and Telephones, pp. 229, 239; 27 Am. & Eng. Enc. of Law, p. 1021. Telegraph companies are equally obligated by the common law against discrimination. Western Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92, 21 Sup.Ct. 561, 45 L.Ed. 765. Statutes enforcing this common-law liability not to discriminate are therefore merely in affirmance of the common law. 27 Am. & Eng. Enc. of Law 1021, 1022; Central Union Telephone Co. v. Fehring, 146 Ind. 189, 45 N.E. 64; State v. Nebraska Tel. Co., 17 Neb. 126, 22 N.W. 237, 52 Am.Rep. 404; State v. Citizens' Tel. Co., 61 S.C. 83, 39 S.E. 257, 55 L.R.A. 139, 85 Am.St.Rep. 870; State v. Bell Tel. Co., 36 Ohio St. 296, 38 Am.Rep. 585. Neither is there anything in the Tennessee statute, set out heretofore, which adds anything to the common-law obligation of such companies. A new remedy is given and severe penalties are imposed for non-observance, but the statute is directed only against discrimination. The contention underlying the whole argument of the attorney for the defendant in error, rather than directly advanced, that under this statute such companies are required to 'supply all applicants' for service without regard to their location within the limits of territory to which they have in good faith confined their facilities, would lead to absurd results, and make the conduct of such a business practically impossible. The statute must be sensibly construed, and general terms so limited in their application by the context as not to lead to injustice or oppression. To avoid absurd consequences, it was said in U.S. v. Kirby, 7 Wall. 482, 486, 19 L.Ed. 278, the courts, when possible, 'will presume that the Legislature intended exceptions to its language which will avoid results of this character. ' This general principle of statutory construction has been again and again applied. Some of the cases are: Chew Heong v. United States, 112 U.S. 536, 5 Sup.Ct. 255, 28 L.Ed. 770; Holy Trinity Church v. United States, 143 U.S. 457, 12 Sup.Ct. 511, 36 L.Ed. 226; Bate Refrigerating Co. v. Sulzberger, 157 U.S. 37, 15 Sup.Ct. 516, 39 L.Ed. 601. In the last-cited case the court said:

'Undoubtedly the court, when endeavoring to ascertain the intention of the Legislature, may be justified, in some circumstances, in giving weight to considerations of injustice or inconvenience that may arise from a particular construction of a statute.'

Verbiage which is supposed to impose the duty of supplying all applicants is taken out of its context. The subject-matter of the eleventh section is the prevention of 'discrimination'-- the avoidance of 'partiality.' The mandate of the statute is that applicants shall not be discriminated against, not that all shall be supplied, regardless of location or conditions.

Neither does the provision disregard the usual and approved methods upon which such a business is conducted and compel a service under conditions forbidden by general regulations adopted in good faith as conducive to efficiency of service and economy of operation. We must presume that the right of such companies to conduct their...

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