Rea v. The Montgomery Home Telephone Company

• Decision Date: 06 July 1912
• Docket Number: 17,745
• Citation: 125 P. 27,87 Kan. 565
• Parties: CHARLES REA, Appellee, v. THE MONTGOMERY HOME TELEPHONE COMPANY et al. (THE KANSAS CITY LONG DISTANCE TELEPHONE COMPANY, Appellant)
• Court: Kansas Supreme Court

125 P. 27

87 Kan. 565

CHARLES REA, Appellee, v. THE MONTGOMERY HOME TELEPHONE COMPANY et al. (THE KANSAS CITY LONG DISTANCE TELEPHONE COMPANY, Appellant)

No. 17,745

Supreme Court of Kansas

July 6, 1912

Decided July, 1912.

Appeal from Montgomery district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS--Powers of Judge at Chambers. Section 714 of the code confers upon a district court at chambers and upon the judge thereof at chambers as plenary powers to issue either an alternative or a peremptory writ of mandamus as is thereby conferred upon the district court.

2. TELEPHONE COMPANY--A Public Service Corporation. A telephone company operating under the authority of the state and under a franchise granted by a city of the state is a public service corporation; its duty to the public results from a trust and station and the performance thereof may be compelled by a writ of mandamus issued by a judge of the district court at chambers.

Edw. H Chandler, of Independence, for the appellant.

Banks & Bertenshaw, of Independence, for the appellee.

OPINION

SMITH, J.:

This was an action for peremptory mandamus brought by the appellee against the appellant and another defendant, to compel the appellant and its codefendant to furnish to appellee a telephone and telephone service in his dwelling house in the city of Independence, Kan., and to furnish him with the same telephone service and upon the same terms as it was giving such service to the general public in the city, and also for the recovery of damages. The petition was verified by the appellee but no summons was issued in the action. A notice with a copy of the motion for the writ and a copy of the affidavit and petition was served upon the appellant. The application was presented to the district judge at chambers. The appellant appeared and objected to the jurisdiction of the judge to grant a peremptory writ of mandamus. After the objection was overruled the appellant made a general appearance and introduced evidence, as did also the appellee, and the judge allowed the writ, reserving the question of damages for the court. A motion for a new trial presented to the judge was overruled, and after the court had rendered judgment for attorney's fees in favor of the appellee a motion for a new trial was filed in court and overruled. Thereupon the appeal was taken.

Five assignments of error are presented, the first of which is that the district court at chambers had no jurisdiction to grant a peremptory writ of mandamus. Section 714 of the code relating thereto reads:

"A writ of mandamus may be issued by the supreme court or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust or station."

Section 717 of the code reads:

"When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases, the alternative writ must be first issued."

From the language used in the statute, no distinction seems possible between the powers conferred upon the district court during term, and the power conferred upon the judge at chambers. Indeed the distinction between the district court during term and the court or judge at chambers in proceedings of this nature is very narrow and is a matter largely of form. The court sits usually in the court room in the presence of the clerk of the court and a sheriff and generally a stenographer and such members of the bar and others as see fit to attend. At chambers the judge may sit anywhere within his territorial jurisdiction and no other officers of the court are necessarily present; but they may be present. The case and the evidence is presented to the same man in either instance and the result depends solely upon his individual judgment, in a proceeding of this kind no jury being permissible. Such being the case, we conclude that the legislature in enacting the statute above quoted meant exactly what it said and conferred power on the district court and upon the judge thereof at chambers without distinction to issue a peremptory or an alternative writ of mandamus. Of course no final judgment can be entered in such action without hearing the respondent, or an opportunity therefor.

It is contended that section 2391 of the General Statutes of 1909 provides and governs the powers granted to judges at chambers. This is true in regard to procedure generally, but in proceedings for a mandamus the special provision above quoted is applicable to the exclusion of the general provision in section 2391.

As provided in section 717 of the code, the alternative writ must be first allowed, except when the right to require the performance of the act is clear and it is apparent that no valid excuse can be given for not performing it. In any case the remedy of mandamus should be exercised with caution and only in furtherance of justice. To this end its exercise is not bound...