State v. The Kansas Postal-Telegraph-Cable Company

• Decision Date: 10 July 1915
• Docket Number: 19,766
• Citation: 96 Kan. 298,150 P. 544
• Parties: THE STATE OF KANSAS, ex rel. H. O. CASTER, as Attorney for the PUBLIC UTILITIES COMMISSION, etc., Plaintiff, v. THE KANSAS POSTAL-TELEGRAPH-CABLE COMPANY, Defendant
• Court: Kansas Supreme Court

150 P. 544

96 Kan. 298

THE STATE OF KANSAS, ex rel. H. O. CASTER, as Attorney for the PUBLIC UTILITIES COMMISSION, etc., Plaintiff, v. THE KANSAS POSTAL-TELEGRAPH-CABLE COMPANY, Defendant

No. 19,766

Supreme Court of Kansas

July 10, 1915

Decided July, 1915.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

1. UTILITIES COMMISSION--Power to Regulate and Control Location of Telegraph Stations. The public utilities act (Laws 1911, ch. 238) and related statutes have conferred upon the public utilities commission the power to determine whether a telegraph station long established and maintained should be abandoned.

2. SAME. The power thus granted is a valid exercise of governmental supervision and does not contravene any provision of either the national or state constitution.

3. TELEGRAPH STATION--Can Not be Discontinued without Permission of Utilities Commission. Where a telegraph company maintained a telegraph station for a number of years at an average deficit of $ 134.33 per annum it should have applied to the public utilities commission to discontinue it, and it was unlawful to close the station and quit business thereat until such permission was granted.

4. SAME--Construction of Statutes. Section 1796 of the General Statutes of 1909 (Laws 1893, ch. 152) is largely superseded by the public utilities act and other related statutes enacted since 1893.

5. TELEGRAPH STATION AT COUNTY SEAT--Not Self-supporting--Utilities Commission May Permit Its Discontinuance. Section 1796 of the General Statutes of 1909 (Laws 1893, ch. 152), requiring each telegraph company to maintain an office in the county seat of each county when its lines run through such county seat, does not limit the power of the public utilities commission to determine whether such office is self-supporting and compensatory, nor prevent the commission from relieving the telegraph company of that duty if its enforced maintenance would violate any provision of the national or state constitution, or be otherwise unduly burdensome, unreasonable or oppressive.

H. O. Caster, of Topeka, for the plaintiff.

John C. Gage, Sanford B. Ladd, and Charles E. Small, all of Kansas City, Mo., for the defendant.

OPINION

DAWSON, J.:

The state of Kansas, through one of its authorized officers, invokes the original jurisdiction of this court and asks for a writ of mandamus directing the Kansas Postal-Telegraph-Cable Company to reestablish and maintain its telegraph station at Syracuse, the county seat of Hamilton county.

The company is a Kansas corporation, doing both domestic and interstate business. For several years it maintained a telegraph station at Syracuse; but finding that it was doing business at a loss and that there had been a deficit in its receipts as compared with its expenditures for five years last past the company closed its office and quit business in that city on January 12, 1914.

The principal complaint of the state is that the company omitted to ask and obtain from the public utilities commission an order permitting it to close its office and abandon its business at that point.

The company's answer to the alternative writ may be thus summarized: (a) Its business in Syracuse for the years 1909 to 1913, inclusive, was conducted at a loss aggregating $ 671.68, an average deficit amounting to $ 134.33 per annum. (b) It made no application to the public utilities commission for leave to close its office and discontinue its telegraph service at Syracuse and it never received the assent of the commission so to do. It avowed that it will not restore that service voluntarily. (c) The public are adequately served at Syracuse by the Western Union Telegraph Company and the Syracuse Telephone Company. (d) "This defendant avers that it is and always has been characteristic of the management of any telegraph business, such as that of this defendant, to open temporary and experimental offices in different cities and towns, in order to determine whether the business of such offices will be compensatory; that this is also true in the case of branch offices in cities, and that such offices are opened and closed and reopened, as the case may be, with frequency, depending upon the volume of the business and whether it justifies the continued maintenance of the office, and also depending upon the fluctuations of the business, which sometimes increases and sometimes decreases." (e) That to require the company to reestablish its station at Syracuse and continue to do business at a loss would violate the fourteenth amendment. (f) That to compel the company to reestablish and maintain its station at Syracuse until the commission gives sanction to its discontinuance would be an unlawful interference and burden upon interstate commerce, and violate section 8 of article 1 of the federal constitution, and violate the bill of rights of the Kansas constitution.

To this answer the state filed a demurrer, which we will treat as a motion to quash or as a motion for judgment on the pleadings.

The state contends: (1) That defendant had no right to discontinue its service at Syracuse without first having obtained the sanction of the public utilities commission. (2) That section 1796 of the General Statutes of 1909 requires the maintenance of a telegraph station at Syracuse since that city is a county seat. A third contention in the state's brief was that notwithstanding the deficit in operating the telegraph station at Syracuse the company should be required to maintain it, unless it could be shown that the entire intrastate business of the company was operated at a loss; but ere the oral argument was reached certain decisions of the supreme court of the United States were handed down which abrogated that doctrine and it was abandoned. (Nor. P. Ry. v. North Dakota, 236 U.S. 585, 35 S.Ct. 429, 59 L.Ed. 735.)

(See, also, Railroad Co. v. Utilities Commission, 95 Kan. 604, syl. P 3, 148 P. 667, 671.)

The defendant telegraph company makes the counter contentions: (1) No state law required the defendant to obtain the consent of the public utilities commission before discontinuing its service at Syracuse. (2) Section 20 of the public utilities act, as construed by plaintiff and applied to this case, is void. (3) Section 1796 of the General Statutes of 1909, requiring every telegraph company operating a line through any county seat in Kansas to maintain a telegraph station thereat, is void as applied to Syracuse.

Before considering these specific points, it will be convenient to cite the pertinent statutes.

Section 7186 of the General Statutes of 1909 provides:

" Said commissioners (the board of railroad commissioners) shall have the general supervision of all railroads operated by steam or electricity or other motive power within the state, and all express companies, sleeping-car companies, and all other persons, companies or corporations doing business as common carriers in this state; and shall inquire into any neglect or violations of the laws of this state by any person, company or corporation engaged in the business of transportation of persons or property therein, or by the officers, agents or employees thereof; and shall also from time to time carefully examine and inspect the condition of each railroad in the state, and of its equipment, and the manner of its conduct and management with reference to the public safety and convenience: Provided, This section shall not be construed as applying to street railway or electric lines operated wholly within one county."

Section 7188 reads:

" Whenever in the judgment of the board of railroad commissioners it shall appear that any railroad corporation or other transportation company fails in any respect or particular to comply with the terms of its charter or the laws of the state, or whenever in their judgment any repairs are necessary upon its road, or any addition to its rolling-stock, or any addition to or change of its stations or station-houses, or any change in its rates for transporting passengers or freight, or any change in the mode of operating its road and conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, said commissioners shall inform such corporation of the improvement and changes which they deem to be proper by a notice thereof in writing, to be served by leaving a copy thereof, certified by the secretary of the board, with any station agent, clerk, treasurer, manager or any director of said corporation, which notice shall state the time within which said improvements or changes are required to be made; and if such orders are not complied with within the time stated in said notice, the attorney for the board shall forthwith file with the commissioners a complaint in writing, praying for an investigation of said matter, which complaint shall be heard according to the provisions of said act as in other cases."

The public utilities act (Laws 1911, ch. 238) provides:

"SECTION 1. The Board of Railroad Commissioners of the state of Kansas is hereby constituted and created a Public Utilities Commission for the state of Kansas, and such commission is given full power, authority and jurisdiction to supervise and control the public utilities and all common carriers, as hereinafter defined, doing business in the state of Kansas and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.

"SEC 2. All laws relating to the powers, duties, authority and jurisdiction of the Board of Railroad Commissioners of this state are hereby adopted, and all powers, duties, authority and jurisdiction by said laws imposed and conferred upon the said Board of Railroad...