State ex rel. Buffum Telephone Company v. Public Service Commission

• Citation: 199 S.W. 962,272 Mo. 627
• Parties: THE STATE ex rel. BUFFUM TELEPHONE COMPANY v. PUBLIC SERVICE COMMISSION, Appellant
• Decision Date: 22 December 1917
• Court: Missouri Supreme Court

199 S.W. 962

272 Mo. 627

THE STATE ex rel. BUFFUM TELEPHONE COMPANY v. PUBLIC SERVICE COMMISSION, Appellant

Supreme Court of Missouri

December 22, 1917

Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.

Affirmed.

A. Z Patterson and James D. Lindsay for appellant.

(1) The enforcement of physical connection and interchange service between carriers, railroad companies, telegraph companies telephone companies, or between such a company and customers under reasonable conditions, through switches, spur tracks, or connecting wires, is an exercise of the power of regulation, and not an act to be accomplished only through an exercise of the right of eminent domain. In the instant case, the order of the Public Service Commission requiring the Buffum Telephone Company, at the expense of the Auxvasse Mutual Telephone Company, to construct and maintain a physical connection with the latter company, and to receive and transmit messages or conversations for long distance transmission originating on the lines of the Auxvasse Company, is valid as a reasonable regulation of the business of respondent and its use of its property -- is a requirement of service -- and is not a "taking" or appropriation of respondent's property. Sections 2, 16, 86, 87, 90, 93, Public Service Commission Act; Railway v. Michigan Ry. Comm., 231 U.S. 457, 468; Railroad v. Railroad Comm., 236 U.S. 615; Jacobson v. Wisconsin Comm., 179 U.S. 287; Railroad v. Iowa, 233 U.S. 334; Railroad v. Corporation Comm., 206 U.S. 1; Washington ex rel. v. Fairchild, 224 U.S. 510; Tel. & Tel. Co. v. Hotel Co., 214 F. 666; Telephone Co. v. Railroad Comm., 162 Wis. 383; Telephone Co. v. Railroad Comm., 161 N.W. 240; Telephone Co. v. Telephone Co., 96 Neb. 260; Tel. & Tel. Co. v. State, 38 Okla. 554; State ex rel. v. Tel. & Tel. Co., 147 P. 885. The Buffum Telephone Company is a common carrier of spoken messages, and its duties in that regard must be tested by the rules which the courts have laid down as appropriate and necessary in determining the obligations assumed by common carriers. Telephone Co. v. Telephone Co., 236 Mo. 114; Telegraph Co. v. Tel. & Tel. Co., 177 F. 726; Telegraph Co. v. Tel. & Tel. Co., 61 Vt. 241; State ex rel. v. Telephone Co., 17 Neb. 126. (2) The Auxvasse Mutual Telephone Company is a public utility and is subject to the jurisdiction of the Public Service Commission, because it is engaged "in the conduct of the business of affording telephonic communication for hire." It does this in collecting tolls from non-members who use any part of its system of lines for telephonic communication, or in collecting five dollars per annum from all of those subscribers who are non-members. Subdiv. 17, Sec. 2, Public Service Act 1913; Sections 86 and 87 and Subdivision 3 of Section 93, Publ. Serv. Act 1913; Tel. & Tel. Co. v. State, 144 P. 1060, 1062; 21 Cyc. 437. The Legislature used the word "hire" designedly as distinguished in meaning from the word "profit." Carter v. Arnold, 134 Mo. 208. Contemporary history and the words employed in the definition of the term "telephone corporation," show that the definition cannot be so narrow as to include only corporations operating for profit and with dividends as the object in view. Land & Impr. Co. v. Kansas City, 172 Mo. 533. (3) It is not the amount but the character of the business done which constitutes a public utility. It need not be unrestrictedly offered or open to all of the public. Taxicab Co. v. Kutz, 241 U.S. 252; Public Utilities Comm. ex rel. v. Noble, 113 N.E. 910; Public Utilities Comm. ex rel. v. Telephone Co., 268 Ill. 411; Public Service Comm. v. Fox, 160 N.Y.S. 59; Van Dyke v. Geary, 37 S.Ct. 483; Water, Light & Power Co. v. Eshleman, 167 Cal. 681; Tel. & Tel. Co. v. Hotel Co., 214 F. 666. (4) The Auxvasse Company is subject to the orders and jurisdiction of the Public Service Commission, not only by the evidential facts in the record showing it to be a company "affording telephonic communication for hire," but also by virtue of its complaint and its express submission of itself and its business to the Commission, for regulation, in those express terms. Tel. & Tel. Co. v. State, 144 P. 1060. (5) But the power of the Public Service Commission to require the Buffum Telephone Company to provide instrumentalities and facilities adequate and in all respects just and reasonable with respect to its business of affording long distance telephone service, is plenary, and this power does not depend for its existence or exercise upon the complainant or applicant for the service, being technically and unrestrictedly a public service company. But it is enough that the business afforded and the service attempted by the complainant affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so. Secs. 86 and 87, Public Service Commission Act; Subdivisions 6 and 9 of Section 16, Ibid.; Taxicab Co. v. Kutz, 241 U.S. 252; Public Service Comm. v. Fox, 160 N.Y.S. 59; Tel. & Tel. Co. v. Hotel Co., 214 F. 666; Van Dyke v. Geary, 37 S.Ct. 483; Water, Light & Power Co. v. Eshleman, 167 Cal. 681; Public Utilities Comm. ex rel. v. Telephone Co., 268 Ill. 411; Ins. Co. v. Lewis, 233 U.S. 389; Ratcliffe v. Stock Yards Co., 86 P. 150; Peck v. Tribune Co., 214 U.S. 190. (6) The constitutional issues attempted to be injected into the case through plaintiff's motion for judgment in the circuit court, came too late. They were not raised in the application for rehearing filed with the Public Service Commission, and plaintiff cannot urge them now. Such issues must be raised in time, and in due course of orderly procedure. Section 110, Public Service Commission Act; State ex rel. v. Atkinson, 192 S.W. 86; Sheets v. Insurance Co., 226 Mo. 612; Hattzler v. Met. St. Ry. Co., 218 Mo. 562.

Jeffries & Corum and E. H. Painter for respondent; D. A. Frank, of counsel.

(1) The commission did not have jurisdiction or authority to order a physical connection between the two telephone lines. Subdiv. 17, sec. 1, and art. 5, Public Service Act, Laws 1913; Tel. Co. v. Light & Tel. Co., 236 Mo. 114; Public Utilities Comm. ex rel. v. Mutual Tel. Assn., 270 Ill. 183; State ex rel. v. Public Service Comm., 192 S.W. 958; State v. Tie & Timber Co., 181 Mo. 558. (2) The physical connection ordered is unauthorized under the statute, and confiscatory, because: (a) No public convenience or necessity will be subserved thereby. Subdiv. 3, sec. 93, Public Service Act, Laws 1913; Atchison Railroad v. Public Serv. Comm., 192 S.W. 460; Tel. Co. v. Tel. Co., 37 Ga. Com. Leaflet, 143; State of Washington ex rel. v. Fairchild, 224 U.S. 510; People ex rel. v. Tel. Co., 58 N.Y.S. 221; Mo. Pac. Ry. Co. v. Nebraska, 164 U.S. 403; In re Petition of Phil., M. & S. Railroad, 203 Pa. 354. (b) The purpose is "primarily to secure the transmission of local messages or conversations between points within the same city or town." Subdiv. 3, sec. 93, Public Service Act, Laws 1913; Tel. & Tel. Co. v. Eshelman, 137 P. 1119. (3) The physical connection prayed for would operate as the taking of the property of the Buffum Company without a judicial determination that the taking is for a public use, and without due process of law, in violation of the provisions of Fourteenth Amendment to Constitution of the United States, and Sections 10, 20 and 30 of Article 2 and Section 4 of Article 12 of Constitution of Missouri. State ex rel. v. Publ. Serv. Comm., 194 S.W. 287; Tel. & Tel. Co. v. Railroad, 202 Mo. 656; Pumpelly v. Greenbay Co., 13 Wall. 166; State ex rel. v. Associated Press, 159 Mo. 410; Tel. Co. v. Light & Tel. Co., 236 Mo. 114; Tel. & Tel. Co. v. Eshelman, 137 P. 1119; Railway Co. v. Nebraska, 164 U.S. 403; Cape Girardeau v. Houck, 129 Mo. 607; Shoemaker v. United States, 147 U.S. 282. (4) The Public Service Commission is not a judicial body, and has no authority to pass upon constitutional questions, and no legislative enactment can give it such authority. Railroad v. Publ. Serv. Com., 192 S.W. 460; State ex rel. v. Publ. Serv. Com., 192 S.W. 958; State ex rel. v. Locks, 266 Mo. 314; State ex rel. v. Andrae, 216 Mo. 617; Railroad v. Coal Co., 162 Mo. 288; Aldridge v. Speers, 101 Mo. 460; Kansas City v. Baird, 98 Mo. 215.

WALKER J. Blair, J., dissents.

OPINION

In Banc.

WALKER, J.

This is an appeal by the Public Service Commission from a judgment of the circuit court of Cole County, setting aside an order of the Commission, which required that a physical connection be made at the town of Auxvasse in Callaway County between the Auxvasse Mutual Telephone Company and the Buffum Telephone Company.

The proceedings before the Commission were upon the complaint of the Auxvasse Company asking that the Buffum Company be required to receive and transmit long distance messages over its lines from the members and subscribers of the Auxvasse Company, that they might thereby have long distance connection over the lines of the Buffum Company.

The Auxvasse Company is not incorporated, but is a mutual telephone company formed by the union at the town of Auxvasse of various neighborhood lines extending into the town and united in a local exchange. It was organized in 1911, to afford cheap telephone service to its shareholders and subscribers. It consists of about one hundred and forty members owning twelve or more lines running into and connected at a central office and switchboard in the town of Auxvasse. The members on the various lines composing the system, furnish and own their respective lines and instruments and keep the same in repair, and the members on each line maintain an organization of their own. The union of the various lines under a constitution and by-laws constitutes the central organization known as the Auxvasse Mutual Telephone...