State ex rel. Webster v. Nebraska Tel. Co.

Decision Date21 January 1885
Citation17 Neb. 126,22 N.W. 237
PartiesSTATE EX REL. WEBSTER v. NEBRASKA TELEPHONE CO.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Mandamus.

J. R. Webster, for relator.

R. S. Hall, for respondent.

REESE, J.

This is an original application for a mandamus to compel the respondent to place and maintain in the office of the relator a telephone and transmitter, such as are usually furnished to the subscribers of the respondent. The respondent has refused to furnish the instruments, and presents several excuses and reasons for its refusal, some of which we will briefly notice. It appears that during the year 1883 the respondent placed an instrument in the office of the relator, but for some reason failed to furnish the relator with a directory or list of its subscribers in Lincoln, and various other cities and villages within its circuit, and which directory the relator claimed was essential to the profitable use of the telephone, and which it was the custom of respondent to furnish to its subscribers. Finally, the directory was furnished, but upon pay-day the relator refused to pay for the use of the telephone during the time the respondent was in default with the directory. Neither party being willing to yield, the instruments were removed. Soon afterwards the relator applied to the agent of the respondent and requested to become a subscriber, and to have an instrument placed in his place of business, which the respondent refused to do. It is insisted that the conduct of the relator now relieves respondent from any obligation to furnish the telephone, even if such obligation would otherwise exist. We cannot see that the relation of the parties to each other can have any influence upon their rights and obligations in this action. If relator is indebted to respondent for the use of its telephone, the law gives it an adequate remedy by an action for the amount due. If the telephone has become such a public servant as to be subject to the process of the courts in compelling it to discharge public duties, the mere fact of a misunderstanding with those who desire to receive its public benefits will not alone relieve it from the discharge of those duties. While either or perhaps both of the parties may have been in the wrong, so far as the past is concerned, we fail to perceive how it can affect the rights of the parties to this action.

The pleadings and proofs show that the relator is an attorney at law in Lincoln, Nebraska; that he is somewhat extensively engaged in the business of his profession, and which extends to Lincoln and Omaha, and surrounding cities and county seats, including quite a number of the principal towns in south-eastern Nebraska; that this territory is occupied by respondent exclusively, together with a large portion of south-western Iowa, including in all about 1,500 different instruments. By the testimony of one of the principal witnesses for respondent, we learn that the company is incorporated for the purpose of furnishing individual subscribers telephone connection with each other under the patents owned by the American Telephone Company; instruments to be furnished by said company and sublet by the Nebraska Telephone Company to the subscribers to it. This is clearly the purpose of the organization. While it is true, as claimed by respondent, that it has been organized under the general corporation laws of the state, and in some matters has no higher or greater rights than an ordinary corporation; yet it is also true that it has assumed to act in a capacity which is to a great extent public, and has, in the large territory covered by it, undertaken to satisfy a public want or necessity. This public demand can only be supplied by complying with the necessity which has sprung into existence by the introduction of the instrument known as the telephone, and which new demand or necessity in commerce the respondent proposes satisfying.

It is also true that the respondent is not possessed of any special privileges under the statutes of the state, and that it is not under quite so heavy obligations, legally, to the public as it would be had it been favored in that way. But we fail to see just how that fact relieves it. While there is no law giving it a monopoly of the business in the territory covered by its wires, yet it must be apparent to all that the mere fact of this territory being covered by the “plant” of respondent, from the very nature and character of its business, gives it a monopoly of the business which it transacts. No two companies will try to cover the same territory. The demands of the commerce of the present day make the telephone a necessity. All people, upon complying with the reasonable rules and demands of the owners of the commodity,--patented as it is,--should have the benefits of the new commerce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things, no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce, so necessary in the prosecution of all kinds of business, unless supplied by the respondent. He has tendered to it all the money required by it from its other subscribers in Lincoln for putting in an instrument. He has proven, and it is conceded by respondent, that he is able, financially, to meet all the payments which may become due in the future. It is shown that his office can be supplied with less expense and trouble to respondent than many others which are furnished by it. No reason can be assigned why respondent should not furnish the required instruments, except that it does not want to. There could, and doubtless does, exist, in many cases, sufficient reason for failing to comply with such a demand; but they are not shown to exist in this case. It is known to be essential to the business interests of relator that his office be furnished with a telephone. The value of such property is, of course, conceded by ...

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