New England Tel. & Tel. Co. v. Dep't of Pub. Utilities

• Citation: 159 N.E. 743,262 Mass. 137
• Parties: NEW ENGLAND TELEPHONE & TELEGRAPH CO. v. DEPARTMENT OF PUBLIC UTILITIES et al.
• Decision Date: 10 January 1928
• Court: United States State Supreme Judicial Court of Massachusetts

262 Mass. 137

159 N.E. 743

NEW ENGLAND TELEPHONE & TELEGRAPH CO.

v.DEPARTMENT OF PUBLIC UTILITIES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 10, 1928.

Reservation and Report from Supreme Judicial Court, Suffolk County.

Petition under G. L. c. 25, § 5, by the New England Telephone & Telegraph Company against Department of Public Utilities of Massachusetts and another, to review certain rulings and orders of named defendant. On defendants' exceptions, the trial judge reserved and reported the case for the full court. Rulings and orders annulled.J. N. Clark and C. S. Pierce, both of Boston, for plaintiff.

C. F. Lovejoy, of Boston, and the Attorney General, for defendant Department of Public Utilities.

L. A. Mayberry, W. V. Taylor and Harold W. Lewis, all of Boston, for defendant Hotels Statler Co., Inc.

WAIT, J.

This is a petition under G. L. c. 25, § 5, to review rulings and orders of the Public Utilities Department which were made as a result of, or in the course of, proceedings before the commission instituted under G. L. c. 159, § 16, by the Hotels Statler Company, Inc. (hereinafter called the hotel company) against the New England Telephone and Telegraph Company (hereinafter called the telephone company).

The petition is brought by the telephone company against the hotel company and the five commissioners who have the supervision and control of the department, and it prays that the court will ‘review, modify, amend or annul’ the rulings and orders referred to in the petition, will decree that they are null and void, will stay their enforcement until further order of the court, and will grant such further relief as justice and equity require. The case came on to be heard in the Supreme Judicial Court for Suffolk county upon motion of the hotel company in which the Attorney General joined, that the case be reserved for the full court upon the petition and the answers thereto. The petition set out as exhibits the full evidence and arguments had before the commissioners, the requests for rulings of both parties, and the decision and orders of the department, with the petitions, amendments and motions of the parties.

The telephone company objected, claiming that issues of fact were presented by the pleadings which should be passed upon before the case was ripe for determination. It offered proof upon three issues: The fact that the telephone company was engaged in interstate commerce which was affected by the orders; the fact that a contract existed between the hotel company and the telephone company which was invaded by the orders, and that the hotel company in instituting and prosecuting these proceedings was participating in an illegal conspiracy and had no standing to request the orders. The judge ruled that the telephone company was not entitled to introduce any evidence under the petition, and that the case must be decided upon the record of the proceedings before the commission. To this the petitioner excepted. It made an offer of proof which, subject to its exception, was rejected. The judge thereupon, also subject to exception, reserved the case for the full court, and reserved and reported it upon the petition, answers, offer of proof, rulings thereon and exceptions thereto.

The petitioner presses these exceptions.

[1][2] The law is established that, upon an appeal under G. L. c. 25, § 5, the court will not hear evidence to review or revise findings of fact made by the department. No power is given to rehear facts. Boston & A. R. Co. v. New York Cent. R. Co., 256 Mass. 600, 617 et seq., 153 N. E. 19;City Council of Salem v. Eastern Massachusetts St. R. Co., 254 Mass. 42, 45, 149 N. E. 671;Donham v. Public Service Com'rs, 232 Mass. 309, 327, 328, 122 N. E. 397. The parties must not withhold evidence from the department and produce it in court. See Cincinnati, N. O. & T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 196, 16 S. Ct. 700, 40 L. Ed. 935;State of Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 526, 32 S. Ct. 535, 56 L. Ed. 863. Where, however, there is no finding of fact material to the petitioner's right to review, this rule does not forbid the presentation of evidence to establish it. Such evidence is not offered in rehearing of issues of fact decided by the department, but as the basis in fact to support a claim of right. Unless such evidence is admissible, the right to review given by the statute is not broad enough to secure due process of law, and the statute may be rendered unconstitutional. See In re Opinion of Justices, 251 Mass. 569, 611, 613, 147 N. E. 681. There must be a fair opportunity for submitting the issue of confiscation or of undue interference with the right of management to a judicial tribunal for determination upon its own independent judgment as to both law and facts. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 40 S. Ct. 527, 64 L. Ed. 908;Bluefield Water Works & Improvement Co. v. Public Service Commission of State of West Virginia, 262 U. S. 679, 689,43 S. Ct. 675, 67 L. Ed. 1176;Ohio Utilities Co. v. Public Utilities Commission of Ohio, 267 U. S. 359, 45 S. Ct. 259, 69 L. Ed. 656;Northern Pac. R. Co. v. Department of Public Works of State of Washington, 268 U. S. 39, 45 S. Ct. 412, 69 L. Ed. 837; State of Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, supra.

[3][4] In the case before us there is evidence reported which justifies findings in accord with the contentions of the petitioner. While it is true that the commission made no such findings, neither did it find to the contrary. This court is not bound by the decision of the commission that the evidence was immaterial, and can give it due weight. There is nothing to suggest that fuller or more convincing evidence than was introduced before the commission was sought to be presented to the court. The petitioner, consequently, has not been prejudiced by the refusal to take the evidence offered and its exceptions in connection therewith are, therefore, overruled.

[5] We do not pause to determine whether a respondent can maintain a motion to reserve a case for the full court upon the petition and answers. The petitioner has not argued the matter and we treat it as waived.

It is not necessary to take up seriatim the many requests and rulings presented. The plaintiff has discussed them under five headings and we shall deal with them in the same way. Material facts may be stated as follows: The hotel company contemplated the erection of a large building in Boston to be used in part for offices and in part as a hotel with a large number of rooms for guests and for hotel purposes. Telephone service both for offices and hotel use was essential to the financial success of the undertaking. The telephone company was in control of furnishing such service. In 1922 the hotel company began negotiations with the telephone company with regard to telephone service. The plans for the building were submitted to the telephone company and it entered upon a study of the structural and mechanical problems to be considered in supplying such service as the hotel company required. Their studies and negotiations resulted in an understanding that the building would be constructed in accord with certain plans which eventually provided for construction of conduits for telephone wires by the hotel company in the building, and construction of cables, switchboards, wires, etc., by the telephone company, to be placed by it in the streets for connections between the building and the telephone exchange, or in the building for the appliances to be installed there. The conduits forming part of the building were the property of the hotel company. The telephone material was to remain the property of the telephone company and subject to its control, although attached to the building. The only payment to be made the telephone company was the usual service charge for service and installation of the telephones in the building to be paid by individual subscribers, of whom the hotel company would be one. These negotiations did not result in a written contract. That, however, a contractual relation existed between the companies is manifest. It was understood that the telephone wiring was to be done by the telephone company. The hotel company was to have a building equipped with conduits according to the structural plan agreed upon, and the telephone company was to create, have ready and install whatever else was necessary for telephone service to, from, and within the building. Both companies incurred large expense in their preparations. In contracting for the erection of the building the hotel company made no contract, and no sub-contract was made, for supplying materials or labor for the telephone wiring.

The telephone company's practice has been to own, control, and install by workmen in its employ all telephone apparatus and all wiring which enters into the transmission of speech over its system and its connections. A few exceptions to this practice exist, but it has been maintained substantially without exception. It was the expectation of the telephone company that it would be followed in this case. We think it must be assumed that the hotel company was aware of both practice and expectation. The construction of the building went forward till, in 1926, occasion arose for the pulling of wires from the feed cable, already laid by the telephone company, through certain of the conduits to places where telephones were to be set up. Then workmen, employed by the subcontractor for all wiring other than that which it had been contemplated the telephone company should install, insisted that the pulling of these telephone wires should be done by union workmen affiliated with the American Federation of Labor. The employees of the telephone company were not so affiliated. Strikes, first of the employees of the wiring sub-contractor and later of all workmen employed on the...