128 Ky. 209 | Ky. Ct. App. | 1908
Reversing’.
Some yearsr prior to 1903 the Kentucky and Indiana Telephone Company owned and operated a telephone exchange in the city of Owensboro, and in connection therewith two exchanges in the county of Daviess outside of the city. Desirous of extending its country business, it was instrumental in organizing in 1903 a company called the “Rural Home Telephone Company,” and this company established in the county of Daviess a telephone system, with exchanges at various points. Although the Kentucky & Indiana Telephone Company and the Rural Home Telephone Company were separate corporations, the general manager of the Kentucky & Indiana Telephone Company was the president of the Rural Home Telephone Company, and they were operated practically as one system; but there was no contract between the two companies. Under the arrangement between them, which continued from 1903 to January, 1907, there was a physical connection between the wires of the two companies, and the patrons of the Rural Home Telephone Company used the lines and exchange of the Kentucky & Indiana Telephone Company in conversing with people in Owensboro; and the subscribers of the Kentucky & Indiana Telephone Company were enabled by its connection with the Rural Home Telephone Company to talk to patrons of the latter living out in the country. In August, 1906, the Central Home Telephone Company, a. holding corporation, came into the control of the. Kentucky & Indiana Telephone Company, and soon thereafter ascertained that there was no. contract between the Kentucky &
The appeal before us is prosecuted from this julgment, and three grounds are relied on for its- reversal: First that the Kentucky & Indiana Telephone Company has no franchise to operate in the city of Owensboro, and therefore cannot invoke the aid of the court: to compel the Rural Home Company to connect or exchange business with it; second, that there was no> contract between the two companies in respect to the-interchange of business or the. connection of their
It is conceded that there was no written agreement or any definite verbal contract between the; Kentucky & Indiana Telephone Company and the Rural Home Telephone Company during the time they operated in connection with each other, although there existed an arrangement under which their lines were connected and their • business exchanged. This arrangement, which did hot assume the dignity of a contract, or entitle the parties to the reciprocal rights and obligations that might be imposed by or grow out of contract rights, was not sufficient to justify the Kentucky & Indiana Telephone Company in resting its action for relief upon the violation of any contractual relation between the companies; Bastin Telephone Co. v. Richmond Telephone Co., 117 Ky. 122, 77 S. W. 702, 25 Ky. Law Rep. 1249. Indeed, counsel for the Kentucky & Indiana Telephone Company do not rely upon any contract between the two companies, or place their case upon the ground that any contract right has been violated. The chief contention is that, as 'the lines of the two companies were connected in such a manner as to constitute them for all practical purposes one company in the transmission of messages, the Rural Home Telephone Company had no legal right t-o- sever the connection, thereby refusing to receive or transmit in the usual course-messages. This contention is grounded upon section 199 of the Constitution,' and is‘claimed to be supported by the
In opposition to the claim of the Kentucky & Indiana Telephone Company that this section requires the Rural Home Telephone Company to receive and transmit its messages, the point is pressed on our attention by the Rural Home Telephone Company that the Kentucky & Indiana Telephone Company never had a franchise to operate in the city of Owensboro a telephone system, and, being a trespasser and violator of one section of the Constitution, it is not entitled to. invoke in its behalf the benefits of another section of the Constitution. It stands admitted that the Kentucky & Indiana Telephone Company does not own or operate any system of telephones outside of the city of Owensboro, and that it was not granted in the manner required by the Constitution any franchise or privilege by the city to operate or conduct a telephone system within its limits. This being true, the question comes up, can it, in the absence of a contract, maintain an action against the Rural Home Telephone Company. for- refusing to transmit and receive its messages? . And this involves the further inquiry, whether the Rural Home Telephone Company can raise the question that it has no franchise
“Sec. 163.- No * * * telephone company within a city or town shall be permitted or authorized to * * * erect its poles, posts or other apparatus along, over, under or across the streets, alleys or public grounds of a city or town, without the consent.of the proper legislative bodies or boards of such city or town being first obtained.
■ “Sec. 164. No county, city town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privileges or make any contract in reference thereto for a term exceeding twenty years.- Before granting such franchise for a term of years, such municipality shall first after due advertisement receive bids therefor publicly, and award the same to the highest and best-bidder, but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.”
These sections of the Constitution must be read together; as the right to occupy the streets and public- Way conferred' by section 163 can only be granted .in the manner provided in "section 164. In all the cases involving these sections that’ have come before this court-, the attempt has been made to- give "them such a construction as would fairly carry out the intention of their enactment. Some- of these cáses have come up between rival telephone companies, and among these- cases we may notice the following:
In East Tennessee Telephone Company v. Anderson County Telephone Company, 115 Ky. 488, 24 Ky. Law Rep. 2358, 74 S. W. 218, thé East Tennessee Telephone Company sued out an injunction against the Anderson County Telephone Company, restraining it from erecting poles, posts, and other apparatus
In Rough River Telephone Company v. Cumberland Telephone Company, 119 Ky. 470, 84 S. W. 517, 27 Ky. Law Rep. 32, the Cumberland Telephone Company was operating -a telephone line over and along one of the public streets of Hartford, Ky., when the Rough River Telephone Company erected its poles in such a manner as to injure the service of the Cumberland Telephone Company. Thereupon the latter company obtained an injunction which was made perpetual, restraining the Rough River Telephone Company from interfering with its lines and poles. The Cumberland Telephone, Company had not obtained in the manner provided by the’ Constitution or statutes the right to establish or conduct a telephone system in the city of Hartford. This being so, the question before the court was, could it maintain an action against the Rough River Telephone Company for. interfering, with its system? After quoting with approval the East Tennessee Telephone. Company Case, supra, the’ court said: “No practical difference can be discovered between the effect of preventing a telephone company from operating its franchise by a wrongfully obtained! injunction and from pre
These cases are sound in principle, and, in our opinion, are conclusive of the question that the Kentucky & Indiana Telephone Company cannot maintain this action. In this case, as in those, the complaining company has no franchise to conduct its business, and hence cannot ask the aid of the court to protect it from injury done to its business by the other company. We are unable to distinguish the cases. If the Anderson County Telephone Company, because it had no franchise to operate in Lawrenceburg, could not recover damages from the East Tennessee Telephone Company for an injury to its business, and if the Cumberland Telephone Company, because it had no franchise to do business in Hartford, could not maintain an action against the Eough Eiver Company for impairing its service, upon what theory can the Kentucky & Indiana Telephone Company, that has no franchise to establish or conduct a telephone system in Owensboro, compel the Eural Home Telephone Company to do business with it? While violating the Constitution and the statute with one hand, the appellant company is asking with the- other the
The argument is made that the public has an interest in the operation and conduct- of telephone systems,- and that, although the Kentucky & Indiana Telephone Company is operating its line without license so to do, it was- giving to the public a satisfactory service, and, in the absence of complaint by the public, the Rural Home Telephone Company could not, to the • detriment of the -public interest, refuse to transmit and receive its messages. It may be conceded that the service rendered by the Kentucky & Indiana Telephone Company in connection with the Rural Home Telephone Company was satisfactory to the public, and that some of its patrons were subjected to inconvenience by the severance- of the relations between the two companies; but the Kentucky & Indiana Telephone Company will not be permitted in this controversy to protect-itself from the consequence of its wrongful acts upon the pretense that the public good- will be promoted by its continued violation of the law. It must be kept in mind- that this controversy is distinctly between these two telephone companies. The Kentucky & Indiana Telephone Company is not- complaining that any physical injury was done to ■ its property, nor can it successfully maintain that its. legal rights have been invaded. ■ It brings this action to compel- the Rural Home Telephone Company to continue connections with it-. In answer to this the Rural Home Telephone Company replies: You are a -trespasser. You have no legal right, to do-business, and-therefore it was
It is probably true, as stated by counsel for appellant, that there are companies operating telephone exchanges that have not acquired under the law rights of way along the public? roads and across fields, and it may be that a defense of this nature would not be sufficient to hinder the court in allowing to such company the benefits conferred by section 199 of the Constitution. Upon this question, however, we ex-, press no opinion, as it is not before us. We are dealing with the facts of the case we have, and will not be led away from the' issues presented by the record to thd consideration of supposed difficulties that might come up under a different state of facts. Sections 163 and 164 of -the Constitution, as has been often ruled, are mandatory. The franchise or privilege to establish and operate a telephone system.in a city or town can only be acquired by observing the constitutional provisions, and a company that seeks to defend its right to the use of the streets and highways of a city in any other way than under the Constitution is a trespasser, and without standing in court. In this condition the appellant company comes to the court and asks relief that cannot for the reasons stated be granted. We express no opinion as to what the status of the Kentucky & Indiana Telephone Company would be if its organization was irregular, or
It is further insisted that, although the city of Owensboro might have the right to raise the question that the Kentucky & Indiana Telephone Company is occupying its streets without right, the Rural Home Telephone Company in this 'controversy cannot make this defense. In support of this proposition counsel rely upon Cosby v. Owensboro & Russellville R. Co., 10 Bush, 288, and Dulaney v. L. & N. R. Co., 100 Ky. 628, 18 Ky. Law Rep. 1088, 38 S. W. 1050, following it. In the Cosby Case certain property owners sought to enjoin the construction of the railroad along one of the streets of the city, claiming that it would damage their property, and also-upon the ground that the company had no lawful right to construct its road in- the street, because the city council had undertaken to grant the right of way without proper legislative authority for so doing. In considering the rights of the complaining property owners, the court said'. “The rights of the authorities of a city, with legislative warrant, to permit the construction and operation -through its streets, of railroads upon which trains of cars are propelled by steam; is now an open question. Those who purchase lots bordering on a street take their title, subject to the appropriation of the street to such public uses, promotive of commerce and business, as the general good of a city or town may require.” In refusing the property owners relief, the court did not find it necessary to decide whether the city authorities had or not the necessary legislative authority to grant a railroad company the right to lay down its tracks and operate its road through
The attempt is made to apply the doctrine of that
- Our conclusion is that the judgment of the circuit court must be reversed, with directions to dismiss the petition.