State v. W. U. Tel. Co.

• Decision Date: 14 February 1951
• Docket Number: No. 32250,32250
• Parties: , 43 O.O. 488 STATE v. WESTERN UNION TEL. CO.
• Court: Ohio Supreme Court

Page 511

154 Ohio St. 511

97 N.E.2d 2, 43 O.O. 488

STATE v. WESTERN UNION TEL. CO.

No. 32250.

Supreme Court of Ohio.

Feb. 14, 1951.

Syllabus by the Court.

1. Where a petition alleges in the alternative two statements of fact, one of which is sufficient to constitute a cause of action and the other is not, a cause of action is not stated.

2. An allegation that certain action will constitute an abandonment or substitution of service, without setting forth the character of the substitution, is not an allegation that such action will constitute an abandonment of service.

3. Depending upon its character, a substitution of service by a public utility may or may not involve an abandonment of service within the meaning of Sections 504-2 and 504-3, General Code.

4. Where a substitution of service by a public utility will result in improving the service rendered, such substitution will not amount to an abandonment of service within the meaning of Sections 504-2 and 504-3, General Code, even though it will involve abandonment of old facilities which are replaced. Pittsburgh & West Virginia Ry. Co. v. Public Utilities Commission, 120 Ohio St. 434, 166 N.E. 372, approved and followed.

5. The Public Utilities Commission of Ohio has no jurisdiction to make any order under Sections 504-2 and 504-3, General Code, except pursuant to an application to the commission made in accordance with the provisions of those sections by the parties described therein.

6. An order of the Public Utilities Commission of Ohio directing a telegraph company to file such an application is void.

7. In a proceeding by the state brought on behalf of the Public Utilities Commission of Ohio to enjoin a telegraph company from abandoning part of its service without applying for and securing the approval of that commission under Section 504-3, General Code, no relief may be given unless the court determines as a fact that such action does amount to an abandonment of service.

8. Constitutional questions will not be decided until the necessity for their decision arises. Paragraph one of the syllabus in State ex rel. Lieux v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414, approved and followed.

The state of Ohio commenced this action in the Common Pleas Court of Franklin County, seeking to enjoin The Western Union Telegraph Company, herein referred to as Western Union, 'from abandoning, discontinuing or substituting' its intrastate utility service in Bellefontaine, Delphos, Lebanon, Marysville, Mt. Gilead and Ottawa, Ohio, without first complying with an alleged order of the Public Utilities Commission of Ohio, herein referred to as the commission, made on June 17, 1947, and with the laws of the state. Western Union filed an answer to the state's petition and the state filed a reply to that answer. Thereafter, Western Union filed a motion for judgment on the pleadings. That motion was granted by the Common Pleas Court.

The judgment of the Common Pleas Court was affirmed by the Court of Appeals.

The case is before this court on appeal from the judgment of the Court of Appeals, a motion to certify having been allowed and a motion to dismiss an appeal of right having been overruled.

Herbert S. Duffy, Atty. Gen. and Kenneth B. Johnston, Columbus, for appellant.

Vorys, Sater, Seymour & Pease and James A. Gorrell, all of Columbus, John H. Waters and William G. H. Acheson, New York City, for appellee.

TAFT, Judge.

The first question to be considered is whether the action, which it is alleged that Western Union proposes to take with regard to its service in these communities, can be taken without first securing the approval of the commission. the answer to this question depends upon an analysis of the allegations of the pleadings and the terms of Sections 504-2 and 504-3, General Code.

So far as material to a consideration of the questions involved in this case, those sections read as follows:

'Section 504-2. * * * no public utility * * * furnishing service or facilities within the state of Ohio, shall abandon or be required to abandon or withdraw any * * * telegraph line * * * or any portion thereof * * * or service station of a public utility, or the service rendered thereby, which has once been laid, constructed, opened and used for public business, nor shall [sic] be closed for traffic or service thereon, therein or thereover except as provided in section 504-3 [General Code]. Any * * * public utility violating the provisions of this section shall forfeit and pay into the state treasury not less than one hundred ($100.00) dollars, nor more than one thousand ($1,000.00) dollars, and shall be subject to all other legal and equitable remedies for the enforcement of the provisions of this act [Sections 504-2 to 504-3, General Code].

'Section 504-3. * * * any such public utility * * * desiring to abandon or close, or have abandoned, withdrawn or closed for traffic or service all or any part of such line or lines * * * or service station, shall first make application to the public utilities commission in writing * * *.

'Upon the hearing of said application said commission shall ascertain the facts, and make its finding thereon, and if such facts satisfy the commission that the proposed abandonment, withdrawal or closing for traffic or service is reasonable * * * they may allow the same * * *. Provided, however, that should the application ask for the abandonment or withdrawal of any * * *telegraph line * * * service station, or the service rendered thereby, in such manner as can result in the permanent abandonment * * * of service and facilities of any such public utility, no application shall be granted unless the company or public utility shall have operated said * * * telegraph line * * * or service station for * * * at least five years, and such notice shall be given by publication in a newspaper of general circulation throughout any county or municipality which may have granted a franchise to said company or public utility, under which said * * * telegraph line * * * or service station is operated or in which the same is located * * *.

'The provisions of this section shall apply to all such service now rendered and facilities furnished or hereafter built and operated * * *.' (Emphasis ours.)

The petition contains allegations that Western Union proposes 'to discontinue, abandon and substitute all its class 1-B telegraph offices' in certain communities and to 'substitute service therein by local telephone companies under the management of The Telephone Service Company of Ohio.'

Throughout the petition, this proposed action of Western Union is referred to as a 'discontinuance, abandonment of substitution' of service.

The petition alleges that Western Union 'had made no application for the discontinuance, abandonment, or substitution of service' to the commission; that the commission, 'upon its own motion, issued an order * * * requiring * * * Western Union * * * to show cause why an application for discontinuance, abandonment or substitution should not be filed with the * * * commission as required by Sections 504-2 and 504-3, General Code'; that Western Union appeared 'for the purpose of denying jurisdiction of the state of Ohio and the Public Utilities Commission of Ohio over proposed discontinuance, abandonment or substitution of * * * service'; that, on June 17, 1947, the commission made an order finding 'that the proposed discontinuance, abandonment or substitution of its class 1-B telegraph offices in each of the communities involved and substitution of the teleprinter to be established and operated by the local telephone company is abandonment, substitution or change in service as contemplated by Sections 504-2 and 504-3 of the General Code,' and directed Western Union to file an application with and receive approval of the commission 'prior to making the contemplated or proposed abandonment or change in service'; that Western Union had entered into contracts with the Telephone Service Company under which it 'will discontinue operations of its offices and agencies' in the communities involved 'and * * * the Telephone Service Company will handle all telegraph business from and to such cities'; and that, without obeying and complying with the order of the commission of June 17, 1947, Western Union will 'proceed to abandon, discontinue or substitute intrastate utility service in' the communities involved. (Emphasis in quoted portion added.)

An examination of the order of the commission, dated June 17, 1947, which is an exhibit to the petition, discloses that it is substantially as described in the petition and contains a finding 'that the proposed discontinuance of its class 1-B telegraph offices' in the communities involved 'and the substitution of teleprinter operated agency offices to be established at each place * * * is abandonment, substitution or change in service as contemplated in Sections 504-2 and 504-3 of the General Code of Ohio.'

An examination of the contract made between Western Union and The Telephone...