State v. Western Union Telegraph Co.

• Court: Supreme Court of Alabama
• Citation: 94 So. 466,208 Ala. 228
• Docket Number: 3 Div. 571.
• Parties: STATE v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 12 October 1922

94 So. 466

208 Ala. 228

STATE
v.
WESTERN UNION TELEGRAPH CO.

3 Div. 571.

Supreme Court of Alabama

October 12, 1922

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

The State of Alabama sues the Western Union Telegraph Company to recover statutory penalties for failure of the telegraph company to comply with an order of the Alabama Public Service Commission directing continuation of telegraphic service to certain towns in the state of Alabama. From a judgment for defendant, plaintiff appeals. Affirmed.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

Francis R. Stark, of New York City, and Rushton & Crenshaw, of Montgomery, for appellee.

THOMAS, J.

The suit was for recovery of statutory penalties for discontinuance of [94 So. 467] commercial services to certain towns and villages in this state.

The issues are framed by counts 1 to 4, inclusive, defendant's pleas, and the general replication. The submission was upon the pleadings, agreed statement of facts, and oral testimony. There was judgment for the defendant, and the state appeals.

An order of the Alabama Public Service Commission is subject to review by an appropriate action if it has exceeded its jurisdiction, or the statute under which it has proceeded is unconstitutional, or if the order clearly appears to be unreasonable and unjust. R. R. Com. v. Ala. Nor. Ry., 182 Ala. 357, 368, 62 So. 749; R. R. Com. v. St. L., etc., Co., 195 Ala. 527, 529, 70 So. 645; Wadley South. Ry. v. Georgia, 235 U.S. 651, 35 S.Ct. 214, 59 L.Ed. 405, 411.

The statute charges the Railroad Commission (the name being later changed to Alabama Public Service Commission) with the duty of supervising, regulating, and controlling transportation companies in matters relating to the performance of public duties, charges therefor, and abuses thereof, and provides that "the *** Commission *** shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just." Code, 1907, § 5651; Ala. Public Service Com. v. L. & N., 206 Ala. 326, 89 So. 524. This jurisdiction was later extended to and over telephone and telegraph companies. Acts 1915, pp. 567, 865; Birmingham v. Sou. Bell T. & T. Co., 203 Ala. 251, 82 So. 519.

The real questions are whether error was committed in rendition of judgment for defendant in the suit for statutory penalties and in dismissing the petition for mandamus. It is established by the decisions that a public service corporation, organized to do a business affected with a public interest, and having held itself out to the public as being willing, able, and equipped to serve all members of the public on proper and reasonable terms and conditions (B. R. L. & P. Co. v. Littleton, 201 Ala. 141, 145, 77 So. 565) may not, without the consent of the state, by its voluntary act, deprive itself of its franchise and facility, disabling it in performing the function which was the condition for the public grant. Nor. Ala. Ry. v. Guttery, 189 Ala. 604, 66 So. 580; American Lumber Co. v. Tombigbee, etc., Co., 154 Ala. 385, 45 So. 911; Ricketts v. Birmingham, etc., Co., 85 Ala. 600, 5 So. 353. Such corporations may not, without the consent of the state, abrogate the performance of their duties to the public, imposed by their charters as the consideration for the grant of their franchises. Union Pacific v. Chicago, etc., Co., 163 U.S. 564, 16 S.Ct. 1173, 41 L.Ed. 265; Cent. Transp. Co. v. Pullman, etc., Co., 139 U.S. 24, 48, 11 S.Ct. 478, 35 L.Ed. 55; Thomas v. West Jersey Ry., 101 U.S. 71, 25 L.Ed. 950, 953; Black v. Delaware, etc., Co., 22 N. J. Eq. 130, 399; Beman v. Rufford, 1 Sim. (N. S.) 550; Winch v. R. R. Co., 13 L. & Eq. 506. See 2 Bl. Comm. star p. 37; 3 Kent, Comm. star p. 458.

This rule can only apply to voluntary transfers of corporate franchises and properties and not to involuntary transfers not produced by or which could not have been prevented by the corporation. Cent. Transp. Co. v. Pullman, etc., Co., supra; Indianapolis v. Consumers' etc., Co., 144 F. 640, 644, 75 C. C. A. 442. The reasonable interpretation of the rule of jus disponendi was applied in Thomas v. West Jersey Ry., supra (lease of whole road for 20 years); Penna. R. Co. v. St. Louis, etc., Co., 118 U.S. 290, 6 S.Ct. 1094, 30 L.Ed. 83 (lease for 99 years); Oregon Ry. & Nav. Co. v. Oregon Ry. Co., 130 U.S. 1, 9 S.Ct. 409, 32 L.Ed. 837 (96-year lease); Cent. Transp. Co. v. Pullman, etc., Co., supra (99-year lease); St. Louis, etc., Co. v. T. H. & I., 145 U.S. 393, 12 S.Ct. 953, 36 L.Ed. 748 (lease 993 years); U.S. v. Union Pacific, 160 U.S. 1, 16 S.Ct. 190, 40 L.Ed. 319 (contract to exclude other telegraph companies from railroad right of way); Union Pacific v. C., R.I. & P., 163 U.S. 564, 16 S.Ct. 1173, 41 L.Ed. 265 (contract for trackage for 999 years over another line of railway on a mileage or wheelage basis, from Council Bluffs to Omaha). Earlier cases applying the rule are York & Maryland Co. v. Winans, 58 U.S. (17 How.) 31, 39, 15 L.Ed. 27, 30; Pearce v. Madison, etc., Co., 62 U.S. (21 How.) 441, 16 L.Ed. 184.

There is no statute authorizing the withdrawal of service without consent of the commission at the points indicated. Has, then, the state impliedly consented to that withdrawal, or has that service been involuntarily withdrawn by the Western Union Telegraph Company so as not to subject it to the penalties provided by statute? It must be conceded that the record shows no element of a voluntary withdrawal by the telegraph company from the rights of way of the Louisville & Nashville Railroad Company, or the lines where the points in question were located, but that a determined, persistent, and unavailing effort was made under the law and in the several courts by the telegraph company to retain its poles and wires along the railroad rights of way after the termination of the contract in 1909. W. U. Tel. Co. v. S. & N. Ala. R. Co., 184 Ala. 66, 62 So. 788; L. & N. v. W. U. Tel. Co., 195 Ala. 124, 71 So. 118, Ann. Cas. 1917B, 696; W. U. Tel. Co. v. L. & N., 199 Ala. 441, 74 So. 946; W. U. Tel. Co. v. L. & N., 202 Ala. 542, 81 So. 44; W. U. Tel. Co. v. L. & N., 206 Ala. 368, 89 So. 518; W. U. Tel. Co. v. L. & N., 206 Ala. 371, 89 So. 520; W. U. Tel. Co. v. L. & N., 244 U.S. 649, 37 S.Ct. 743. 61 L.Ed. 1371. See, also, Ala. Pub. Service Com. v. L. & N., 206 Ala. 326, 89 So. 524. [94 So. 468]

After this unsuccessful litigation on the part of the Western Union with the railroad company, after its contract rights to use the railroad rights of way had expired, the telegraph company could not lawfully remain on the right of way and conduct its telegraphic business without the consent of the railroad. Without that consent, under the facts of the case, it would have been guilty of a trespass to have so remained. That company, acquiescing in the repeated decisions of this court, had the right to cease the use of its wires and the occupancy of the railroad lands by its poles and wires as theretofore constructed and located on such rights of way, and also had the right to sell its properties thereon to the Louisville & Nashville Railroad Company. Ala. Pub. Service Com. v. L. & N., supra, all the justices concurring on application for rehearing. Such a sale was not required by law to be authorized or approved by the Public Service Commission.

If it be conceded that the principles of law applicable to steam railroads apply to telegraph companies, and since there is no express legislation to the end contended for by appellant, has the state impliedly consented to the withdrawal of telegraph service by the Western Union from the towns and villages in question? The rule announced by the courts is well stated in Gates v. Boston, etc., Co., 53 Conn. 333, 342, 343, 5 A. 695, 699:

"It is true that the charter is permissive in its terms and probably no obligation rests upon the corporation to construct the railroad; the option to exercise the right of eminent domain and other public rights is granted. And when that option has been made, and the corporation has located and constructed its line of track, exercising the power of the state in taking property of others, and in so locating and constructing its road, has invited and obtained subscriptions upon the implied promise to construct and operate its road, has commenced to operate the road under the granted powers, thereby inducing the public to rely, in their personal and business relations, upon that state of affairs by so accepting and acting upon the chartered powers a contract exists to carry into full effect the objects of the charter, and the capital stock, franchises and property of the corporation stand charged primarily with this trust. The large sovereign powers given by the state to railroad corporations are granted and exercised only upon the theory that these public rights are to be used to promote the general welfare. Having exercised those powers the corporation has no right against the will of the state to abandon the enterprise, tear up its track, and sell its rolling stock and other property, and divide the proceeds among the stockholders

"The possible effects of the exercise of such a claimed power are utter disaster to the great interests of the state, certain destruction of private property in which whole communities created and existing upon the faith of the continuous use of the chartered powers are interested, and, indeed, the life of the citizen as well as his property rights, are thus jeopardized. Upon principle it would seem plain that railroad property once devoted and essential to public use, must remain pledged to that use, so as to carry to full completion the purpose of its creation; and that this public right, existing by reason of the public exigency, demanded by the occasion, and created by the exercise by a private person of

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