State ex rel. Evansville Tel. Co. v. Stickelman

• Decision Date: 23 June 1914
• Docket Number: No. 22443.,22443.
• Citation: 105 N.E. 777,182 Ind. 102
• Parties: STATE ex rel. EVANSVILLE TELEPHONE CO. v. STICKELMAN et al.
• Court: Indiana Supreme Court

182 Ind. 102

105 N.E. 777

STATE ex rel. EVANSVILLE TELEPHONE CO.

v.STICKELMAN et al.

No. 22443.

Supreme Court of Indiana.

June 23, 1914.

Appeal from Superior Court, Vanderhugh County; F. M. Hostetter, Judge.

Action by the State of Indiana on relation of the Evansville Telephone Company against Edward Stickelman and others. Judgment on demurrer for defendants, and plaintiff appeals. Affirmed.E. Q. Lockyear and Funkhouser & Funkhouser, all of Evansville, and Frank Ely, of Petersburg, for appellant. Cunningham & Ortmeyer, of Evansville, for appellees.

MORRIS, J.

This was an action by appellant, against appellees, the board of public works of the city of Evansville, and the mayor and common council of the city, in which appellant sought an order of mandate directing appellees to grant appellant the right to construct and operate a telephone exchange in Evansville. The complaint avers that appellant is a corporation, organized in 1911, under the provisions of our statute relating to the formation of telephone companies; that in 1906 the Cumberland Telephone & Telegraph Company was granted a franchise to construct a telephone plant in the city, and operate it for a period of 35 years under the terms of a contract which is copied in the complaint; that in January, 1912, appellant petitioned the board of works for a franchise to construct and operate a telephone exchange in the city for the same term, and on the same conditions set forth in the contract with the Cumberland Company, and, at the same time, presented to the board a written contract, containing the same provisions as those of the Cumberland Company contract, and requested the board to execute the same; that the petition was denied, and thereupon appellant petitioned the mayor and council to demand of the board that it send the petition to the mayor and council for consideration, and that the board be required to grant appellant's petition and execute the proposed contract. This petition further recites that appellant presented another proposition to the board by which it asked for a franchise on the same terms and conditions accorded the Cumberland Company, or any other company, and offered to give bond, in reasonable penalty, for the performance of its obligations. The petition was denied by the council, and appellant prays for a mandatory order directing appellees to grant appellant the right to erect and maintain telephone poles, wires, cables, and conduits, in the streets and public places of the city, and conduct a telephone business therein, under the provisions of ordinances and laws regulating telephone companies. The court sustained a demurrer to the complaint, and this ruling furnishes the basis for appellant's assignment of error here.

Our statute (Acts 1911, p. 541; section 1225, Burns 1914) provides that an action for mandate may be prosecuted “against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specially enjoins, or any duty resulting from any office, trust or station.”

It is appellant's contention that, because of section 23 of article 1 of our Constitution, which prohibits the Legislature from granting to any citizen or class of citizens a privilege, which, on the same terms, shall not equally belong to all citizens, the General Assembly is without power to enact any law that will directly or indirectly result in the creation of a monopoly in relation to the operation of a telephone exchange in any municipality of the state; that the facts averred here show the creation, by indirect means, of a monopoly of the telephone business in Evansville, in the control of the Cumberland Company. In support of the proposition appellant cites Citizens' Gas Co. v. Elwood, 114 Ind. 336, 16 N. E. 624, and other cases of like import.

[1] Appellees meet this contention with the proposition that the law vests certain discretionary power in municipal authorities in relation to telephone franchises, and that courts are prohibited from controlling such discretion by writs of mandate. Appellant does not claim that courts can control the discretionary powers of municipal authorities by mandatory orders, but claims that such authorities are clothed with no discretion, but must admit any telephone company to the use of their streets on the same terms and conditions accorded any other company organized for like purposes.

Clause 11 of section 93 of the Municipal Corporations Act of 1905 confers on boards of public works, of cities of the first, second, third, and fourth classes, the following authority:

“To authorize telegraph, telephone, electric light, gas, water, steam, street car, railroad or interurban companies to use any street, alley or public place in such city and erect necessary structures therein, to prescribe the terms and conditions of such use and to fix by contract the price to be charged to patrons: Provided, that such contract shall in all cases be submitted by such board to the common council of such city and be approved by ordinance before the same shall take effect.” Acts 1905, p. 280; section 8696, Burns 1914.

Section 254 of the same act (Acts 1905, p. 383, section 8939, Burns 1914) provides that any city or town may enter into a contract for supplying it and its inhabitants with water, light, telephone service, etc., and that it may provide in such contract the terms and conditions on which such...