Home Tel. Co. v. People's Tel. & Tel. Co.

• Decision Date: 16 December 1911
• Parties: HOME TELEPHONE CO. v. PEOPLE'S TELEPHONE & TELEGRAPH CO. et al.
• Court: Tennessee Supreme Court

141 S.W. 845

125 Tenn. 270

HOME TELEPHONE CO. v. PEOPLE'S TELEPHONE & TELEGRAPH CO. et al.

Supreme Court of Tennessee.

December 16, 1911

Appeal from Chancery Court, Knox County; Will D. Wright, Chancellor.

Suit by the Home Telephone Company against the People's Telephone & Telegraph Company and another. From a decree dismissing the bill, complainant appeals. Affirmed.

Powers & Thornburgh, for appellant.

Lucky Fowler & Andrews, for appellees.

NEIL J.

The complainant is a telephone corporation having, its chief office at Morristown, in Hamblen county, Tenn., with lines running into various surrounding counties. The two defendants are likewise, telephone corporations; the first named having its chief office at Knoxville, with lines running through Knox county, and into various other counties; the second named has its chief office at Jefferson city, in Jefferson county, also with outrunning lines.

The complainant prior to the present litigation constructed an extension of its line from Morristown to within one mile of Jefferson city. From the latter point the Citizens' Telephone Company extended its line to meet complainant's line; and so the two were connected. The Citizens' Telephone Company is also connected at Jefferson city with the People's Telephone & Telegraph Company, but the latter is not connected with the complainant.

The purpose of the present bill is to compel the two defendants to make an electrical connection at Jefferson city between the complainant and the defendant People's Telephone & Telegraph Company through the Citizens' Telephone Company, so as to give to the complainant the benefit of the lines of the two defendants, in order that any patron of the complainant on any of its lines can, through the switchboards at Morristown, Jefferson city, and Knoxville, talk with any person he or she may desire on the lines of either of the two defendants; that is, to secure for the complainant the effect of a consolidation of the three lines.

It appears from the bill and from the evidence that there is an operating agreement between the two defendants for an interchange of business whereby each can use the lines of the other at an agreed rate for messages or conversations; the rate fixed for a conversation of five minutes from Jefferson city to Knoxville being 10 cents. The complainant insists that on the payment of this rate it is entitled to have its lines connected with the two defendants, to the end that it may use the line of the People's Telephone & Telegraph Company into Knoxville, and all other points served by that company.

It appears that patrons of the complainant living at Morristown and other points served by the complainant's line, called the exchange at Jefferson city for the purpose of conversing with parties at Knoxville, but that the Citizens' Telephone Company, under the direction of the People's Telephone & Telegraph Company, declined to make the required connection with the latter, although complainant tendered 10 cents for each message so offered and refused. The service was offered to the complainant of having its messages transmitted or repeated to Knoxville, but this was refused complainant insisting that it had, under the law, a right to a through connection with Knoxville over the defendants' lines, so that one could talk directly from Morristown to the desired party in Knoxville.

It is insisted on behalf of the complainant that it is entitled to the right claimed under sections 10 and 11 of chapter 66 of the Acts of 1885. It also insists that, inasmuch as the Citizens' Telephone Company is accorded by the People's Telephone & Telegraph Company the right to use the lines of the latter into Knoxville, a refusal to permit to complainant the same right on the same terms is an unlawful discrimination and in violation of the common law, as well as of the statute.

The sections of the statute above referred to are as follows:

"Sec. 10. Every telegraph or telephone company doing business in this state, must, under penalty of five hundred dollars for each and every refusal so to do, transmit over its wires to localities on its lines for any individual, or corporation, or other telegraph or telephone company, such messages, dispatches, or correspondence as may be tendered to it by, or to be transmitted to any individual or corporation, or other telegraph or telephone companies, at the price customarily asked and obtained for the transmission of similar messages, dispatches, or correspondence without discrimination as to charges or promptness; the penalty herein prescribed shall be recoverable in any court through proper form of law, one-half of which shall go to the prosecutor and one-half to the state.

"Sec. 11. Every telephone company doing business within this state, and engaged in a general telephone business, shall supply all applicants for telephone connection with 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 situation, 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."

A preliminary question is raised to the effect that the act above referred to is void because in violation of the Constitution of this state on several grounds stated.

This act has been on our statute books for more than a quarter of a century. It has been tacitly treated by the court, the bar and the people of the state as constitutional, except on a ground directed to the formality of its passage settled in 118 Tenn. 1, 101 S.W. 770, infra, and many important and valuable rights have been based thereon, and nothing could induce us now to declare it unconstitutional, except the clearest and most undoubted reasons. The act has been often before the court in cases arising under it, and has been applied in more than one reported case. Telegraph Co. v. Nashville, 118 Tenn. 1, 101 S.W. 770; Vaught v. East Tennessee Telephone Co., 123 Tenn. 318, 130 S.W. 1050. It is a doctrine of the law that when acts have been long treated by the court as constitutional, and important rights have been based thereon, it may refuse to further consider the question. Kelly v. State, 123 Tenn. 516, 548, 132 S.W. 193; Richardson v. Young, 122 Tenn. 471, 517, 125 S.W. 664. We shall add a few other illustrations. In Ferris v. Coover, 11 Cal. 175, it was held that courts would not inquire into the constitutionality of an act, if, by a long line of adjudications and by the acts of the government, it had been treated as constitutional. Linck v. Litchfield, 141 Ill. 469, 477, 31 N.E. 123, that the validity of an act relating to the organization of cities and villages which authorized a city to adopt a certain article by ordinance without requiring the vote of the people, even if originally doubtful, had been determined by direct and incidental recognition for twenty years, and was not an open question; in Rumsey v. People, 19 N.Y. 41, 52-58, that after the organization of a county, and its general recognition throughout the government of the state, and after it had been represented in several sessions of the Legislature, it was contrary to public policy to hold such organization void on account of the want of power to erect such a county; in Kenney v. Hudspeth, 59 N. J. Law, 504, 532, 533, 37 A. 67, that where for more than a generation every department of the government had construed contradictory provisions of the Constitution of the state as conceding to the Legislature power to reduce the number of judges of the court of common pleas whenever, in its opinion, the public good required it, this construction would be binding; in Nye v. Foreman, 215 Ill. 285, 288, 74 N.E. 140, that in view of the fact that the Constitution of 1870 of the state of Illinois, art. 10, § 7, providing that the county affairs of Cooke county should be managed by the board of commissioners, etc., had long been construed by both executive and legislative departments of the state government as giving the board of commissioners power to make appropriations from the funds of the county to pay assistants to the state's attorney, that construction should be acquiesced in by the courts; in Levin v. U. S., 128 F. 826, 829, 63 C. C. A. 476, that the contemporaneous construction of a constitutional provision by those who framed it, and by statesmen, legislators, and judges, and the acquiescence of all departments of the government in such interpretation for a hundred years, conclusively determined the meaning of the provision; in City of Terre Haute v. Evansville & T. H. R. Co., 149, Ind. 174, 186, 46 N.E. 77, 37 L. R. A. 189, that, where a construction of the Constitution by the...