Nebraska Tel. Co. v. State ex rel Yeiser

• Citation: 55 Neb. 627,76 N.W. 171
• Parties: NEBRASKA TEL. CO. v. STATE EX REL YEISER.
• Decision Date: 23 June 1898
• Court: Nebraska Supreme Court

55 Neb. 627

76 N.W. 171

NEBRASKA TEL. CO.

v.STATE EX REL YEISER.

Supreme Court of Nebraska.

June 23, 1898.

Syllabus by the Court.

1. A litigant will not be permitted to invoke the extraordinary remedy of mandamus when an express statute affords him an adequate remedy for the redress of the grievance of which he complains.

2. A private corporation, engaged in the business of operating a telephone plant, is a common carrier of news and intelligence.

3. Such a public service corporation is charged with certain public duties, among which are to furnish for a reasonable compensation to any citizen a telephone and telephonic service, and to charge each patron for the service rendered the same price it charges every other patron for the same service under substantially the same or similar conditions.

4. The power--the jurisdiction--to determine what compensation a public service corporation may exact for services to be rendered by it is a legislative, and not a judicial, function.

5. The jurisdiction of the courts is limited to declaring what the law is, and they are forbidden by the constitution to perform legislative functions.

Error to district court, Douglas county; Scott, Judge.

Mandamus by the state, on relation of John O. Yeiser, against the Nebraska Telephone Company. From a judgment granting writ, defendant brings error. Reversed.W. W. Morsman and Chas. Offutt, for plaintiff in error.

John O. Yeiser, in pro. per.

RAGAN, C.

The Nebraska Telephone Company is a corporation organized and existing under the laws of the state, having its principal office and place of business in the city of Omaha, and owns and operates a telephone plant in that city. John O. Yeiser is by profession a lawyer, and a citizen of said city of Omaha. Yeiser desired a telephone placed in his law office for his own use, and requested the telephone company to furnish him an instrument properly connected, and afford him telephonic service. The telephone company refused to comply with this request unless Yeiser would pay it for such instrument and service the sum of five dollars per month in advance. Yeiser claimed that this sum was an unreasonable and exorbitant charge, refused to pay the same, but tendered the telephone company nine dollars as compensation for the service required of it for three months, and demanded that it supply him with the telephone and telephonic service for that length of time. This demand was refused, and Yeiser thereupon applied to the district court for, and obtained, a peremptory writ of mandamus directed to the telephone company, commanding it to furnish Yeiser the telephone and telephonic service required by him for three months for the sum of nine dollars. The telephone company has brought this judgment here for review.

1. Section 1, art. 8, c. 72, Comp. St. 1897, provides that all charges made for any service rendered or to be rendered by the common carriers of the state shall be reasonable and just, and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful. By section 11 of said article and chapter certain state officers are constituted a board of transportation, and section 12 of said article and chapter defines the powers and duties of said board of transportation with reference to the common carriers of the state. Construing this statute, this court held, in State v. Fremont, E. & M. V. R. Co., 22 Neb. 313, 35 N. W. 118, that the board of transportation had authority to determine what were just and reasonable charges for a service rendered or to be rendered by common carriers, and that said board of transportation was invested with jurisdiction to fix, prescribe, and determine the charges which a common carrier might demand and receive for a service rendered or to be rendered by it, subject only to the limitation that the rate or charge fixed by the board should be just and reasonable. The legislature of 1897 (see Sess. Laws 1897, c. 56, § 24; Comp. St. 1897, c. 72) conferred upon this board of transportation the same and all powers over the telephone, telegraph, and express companies of the state that it had over common carriers or railroad corporations of the state. In other words, if the statutes just referred to are valid, and we have placed a correct construction upon them, the legislature has conferred upon this board of transportation not only jurisdiction to inquire into charges of extortion and unjust discrimination on the part of the telephone companies, and to make suitable orders for the redress of such grievances upon the complaint of the person aggrieved, but has also invested the board of transportation with authority to fix and determine to what compensation a telephone company shall be entitled for any service rendered or to be rendered by it. subject to the limitation that the scale of prices fixed which the telephone company may charge for services to be rendered by it shall not be unreasonable or unjust either to the telephone company or its patrons. State v. Chicago, St. P., M. & O. R. Co., 19 Neb. 476, 27 N. W. 434, was a mandamus proceeding instituted in this court to compel the respondent to build a depot, side tracks, switches, and cattle yards at a certain point on its road. But this court held that whether the railway company should be compelled to build a depot at the place requested was a question--in the first instance, at least--for determination by the board of transportation; that the legislature, by the statute just quoted, had committed the determination of that question to that board; that because the board was a special tribunal, created for the purpose of determining the question, its powers in that respect must be exhausted before the court would interfere by mandamus to compel the railroad company to build the depot. We think this case controls the one at bar. So far as the record before us discloses, no application has ever been made by the relator to the board of transportation to have it determine whether the charge of five dollars per month demanded by the telephone company for the use of a telephone and telephonic service is unreasonable and exorbitant; whether three dollars per month for the use of a telephone and telephonic service is a reasonable charge; nor that the board has fixed a...