Texas Telephone Co. v. City of Mart
| Decision Date | 08 December 1920 |
| Docket Number | (No. 6273.) |
| Citation | 226 S.W. 497 |
| Parties | TEXAS TELEPHONE CO. et al. v. CITY OF MART et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
Action by the City of Mart and others against the Texas Telephone Company and another. From a judgment for plaintiffs, defendants appeal. Reversed and rendered in part and in part affirmed.
Sleeper, Boynton & Kendall, of Waco, for appellants.
R. W. Cowan, of Mart, for appellees.
Appellee, the city of Mart, and certain subscribers to appellant's local telephone exchange, suing for themselves and all others similarly situated, brought suit to restrain appellant from charging such subscribers more than $1.50 per month for use of its residence telephones, and more than $3 per month for use of its business telephones.
It was alleged, in substance: That the city of Mart was a town of less than 5,000 inhabitants, incorporated under the general laws of Texas; and that the Texas Telephone Company was a corporation, operating a local telephone exchange in said town. That on and prior to June 29, 1915, there were two local telephone exchanges in said town, one owned and operated by Southwestern Telegraph & Telephone Company, and the other by the Long Distance Telephone Company, now the Texas Telephone Company, the appellant herein. That appellant was then, and prior thereto had been, operaing its exchange under a franchise from the city of Mart, wherein the rates to subscribers for the use of its telephones was fixed at $1.50 each for its residence telephones, and $2.50 each for business telephones. That at the date above mentioned, the appellant being desirous of obtaining the property of the Southwestern Telegraph & Telephone Company's local exchange, and to merge said exchange, and to obtain a franchise from the city of Mart to operate such merged exchange, upon agreement with appellant, the city of Mart passed an ordinance, permitting such merger and granting such franchise, and fixing the rates for telephone service at $1.50 per month for residence telephones and $3 per month for business telephones, until such time as the subscribers should reach the number of 1,000, after which the rates were to be increased 50 cents per month to each subscriber. Said ordinance further provided that the work of consolidation should be done under the direction of the city authorities, and that appellant should hold the city harmless from any damages that might arise from the performance of the work of consolidation. That appellant accepted said ordinance, and thereafter acted thereunder until during the year 1918, when said exchange was taken over and operated by the federal government as a war measure. That the federal government, while in control of said exchange, fixed the rates for the use of its phones at $2 per month for residence telephones, and $3.50 per month for business telephones. That on July 31, 1919, the federal government turned said exchange back to appellant. That on August 29, 1919, the city council of Mart requested appellant to restore the rates in force prior to the time the same was taken charge of by the government. That appellant refused to comply with said request, but has continued to collect the rates fixed by the government, and will continue so to do unless restrained by order of court. That there are only about 500 telephones in use in said city.
The petition was duly verified. Appellant filed several exceptions to appellees' petition, and made certain allegations of fact as reasons why it should not be restrained from charging the increased price as alleged by appellees. Appellees filed certain exceptions to appellant's answer, which were sustained. The issues involved in such exceptions will be stated in this opinion so far as the same are necessary to a decision herein. Judgment was rendered, perpetually enjoining appellant from charging rates higher than those fixed in the ordinance referred to, and that the subscribers, appellees herein, recover the excess rates paid by them.
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