State Pub. Utilities Comm'n ex rel. Macon Cnty. Tel. Co. v. Bethany Mut. Tel. Ass'n

• Decision Date: 10 December 1915
• Docket Number: No. 10137.,10137.
• Citation: 270 Ill. 183,110 N.E. 334
• Parties: STATE PUBLIC UTILITIES COMMISSION ex rel. MACON COUNTY TELEPHONE CO. v. BETHANY MUT. TELEPHONE ASS'N.
• Court: Illinois Supreme Court

270 Ill. 183

110 N.E. 334

STATE PUBLIC UTILITIES COMMISSION ex rel. MACON COUNTY TELEPHONE CO.

v.BETHANY MUT. TELEPHONE ASS'N.

No. 10137.

Supreme Court of Illinois.

Oct. 27, 1915.

Rehearing Denied Dec. 10, 1915.

Appeal from Circuit Court, Sangamon County; James A. Creighton, Judge.

Appeal by the Bethany Mutual Telephone Association to the Circuit Court of Sangamon County from an order of the Public Utilities Commission, requiring it to cease operations for failure to obtain a certificate of convenience and necessity, granted on the petition of the Macon County Telephone Company as relator. From a judgment sustaining the order, the defendant appeals. Reversed.Whitley & Fitzgerald, of Decatur, and J. L. McLaughlin, of Sullivan, for appellant.

Everett Jennings and Timothy F. Mullen, both of Chicago, George M. Morgan, of Springfield, W. E. Redmon, of Decatur, and Ben B. Boynton, of Springfield, for appellee.

CARTWRIGHT, J.

[1] On the petition of the Macon County Telephone Company, a corporation operating a telephone system in the village of Bethany and vicinity, in Macon county, the State Public Utilities Commission ordered appellant, the Bethany Mutual Telephone Association, forthwith to cease from constructing or maintaining its telephone system in the same locality because it had not obtained from the commission a certificate of convenience and necessity provided for by section 55 of the act entitled ‘An act to provide for the regulation of public utilities.’ Laws 1913, p. 460. The appellant, feeling aggrieved by the order, took the record to the circuit court of Sangamon county by appeal, and the court entered a judgment finding that the Commission had jurisdiction in the case, and that the order was neither unlawful nor unreasonable, and affirming it. From the judgment of the court this appeal was prosecuted.

[2] The appellant, by its answer to the petition, alleged that it was not a public telephone company, and did not propose to engage in the telephone business or construct its system for the public use, and it denied the jurisdiction of the Commission over it. The act creating the Commission, defining its powers and giving it general supervision of public utilities, provides that the term ‘public utility’ includes every corporation, company, or association, jointstock company or association, firm, partnership, or individual, that may own, control, operate, or manage directly or indirectly for public use any plant, equipment, or property used or to be used for or in connection with the transmission of telephone messages between points within this state. The jurisdiction of the Commission is by the terms of the act confined to control and supervision of owners and operators of property devoted to a public use. The purpose of the act is to bring under control by the public, for the common good, property applied to a public use in which the public has an interest. The owner of such property must submit to be controlled by the public to the extent of its interest as long as such public use is maintained. Munn v. People, 94 U. S. 113, 24 L. Ed. 77;People v. Western Union Telegraph Co., 166 Ill. 15, 46 N. E. 731,36 L. R. A. 637;Inter-Ocean Publishing Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822,48 L. R. A. 568, 75 Am. St. Rep. 184.

[3] To constitute a public use all persons must have an equal right to the use, and it must be in common, upon the same terms, however few the number who avail themselves of it. It is not essential to a public use that its benefits should be received by the whole public, or even a large part of it, but they must not be confined to specified, privileged persons. People v. Ricketts, 248 Ill. 428, 94 N. E. 71.

[4] The words ‘public use’ mean of or belonging to the people at large, open to all the people to the extent that its capacity may admit of the public use. State Public Utilities Com. v. Monarch Refrigerating Co., 267 Ill. 528, 108 N. E. 716. The use must concern the public as distinguished from an individual or any particular number of individuals, but the use and enjoyment of the utility need not extend to the whole public or any political subdivision. It may be confined to a particular district and still be public. State Public Utilities Com. v. Noble Mutual Telephone Co., 268 Ill. 411, 109 N. E. 298.

[5] The appellant, under its charter, has no authority to engage in the public service or to devote its property to the public use. Aside from the statutory definition, the...