93 S.E. 857 | N.C. | 1917
CLARK, C. J., concurring.
BROWN, J., concurring, in which opinion the other justices concur. This is an action for a mandamus to compel the defendants, owners of a telephone line, to install a telephone.
The facts are set out in the judgment rendered, which is as follows:
This cause coming on to be heard before the undersigned judge of the Superior Court, at chambers, and being heard, and it appearing that the plaintiff, more than ten days before the return date of the summons, caused summons to be served with a copy of his complaint on the defendant, and that on the return date the parties appeared, and the defendant demurred to the plaintiff's complaint, which demurrer was overruled and defendant excepted, and the defendant filed answer; and that upon the pleadings the parties joined issue, which was heard upon the proofs of the parties, no jury trial being demanded, upon considering the proofs offered and the arguments of counsel, the court finds the facts to be:
1. That the plaintiff is engaged in business in Lee County, and is a resident thereof, and that the defendant is a resident of Chatham County.
2. That the defendant, at and before the commencement of this action, was, and now is, engaged in furnishing telephone (299) service to the public generally, with a central office located at Moncure, N.C. with lines extending from this point to Pittsboro, Merry Oaks, Osgood, and by the plaintiff's place of business at Lockville to Sanford; and the defendant has established regular tariffs for residence and business service, and for toll messages over his and connecting lines.
3. That prior to 20 May, 1917, the defendant furnished such service to the plaintiff at regular rates.
4. That on said date the defendant discontinued said service.
5. That said service was not discontinued by reason of any improper use of said `phone by the plaintiff, or by reason of any failure of plaintiff to observe any rule or regulation established by the defendant for the conduct of his telephone business.
6. That prior to the institution of this action the plaintiff tendered to the defendant all rents due, and the regular rental for one *322 month in advance for a business 'phone, and demanded that the defendant render him service without discrimination and under the same rules and regulations service is furnished to other patrons of the defendant.
7. That the defendant refused, and still refuses, to furnish said service to the plaintiff.
Upon the foregoing facts the court doth adjudge: That the refusal of the defendant to furnish service to the plaintiff on the same terms and under the same conditions it is furnished to the general public is a discrimination against the plaintiff by the defendant; that said defendant is hereby directed and commanded, on or before 1 August, 1917, to install a telephone instrument in the plaintiff's premises and to connect the same with the telephone system operated by the defendant, and on and after date to furnish to the plaintiff service without discrimination upon the same terms and conditions that service is furnished to the public generally.
It is further ordered that the defendant pay the costs of this action, to be taxed by the clerk.
O. H. ALLEN,
Judge Presiding.
The defendants excepted and appealed, upon the ground that telephone companies being subject to the control and regulation of the Corporation Commission, the courts have no jurisdiction of the action. The error in the position of the defendants is in failing to distinguish between the regulation and control of telephone companies, which, as to individuals and corporations, are (300) committed by statute to the Corporation Commission (Rev. sec. 1096, chap. 966, Laws 1907), whether exclusively so or not we need not say, and the refusal to perform a duty to the plaintiff, arising upon the facts that are established.
If the duty exists upon the facts found, there is nothing for the Corporation Commission to hear and investigate, and it only remains for the courts to compel performance of the duty.
The question was considered in Godwin v. Telephone Co.,
The Court declares the doctrine as follows: "A mandamus lies to compel a telephone company to place telephones and furnish telephonic facilities without discrimination for those who will pay for the same and abide the reasonable regulations of the company. This is well settled. S. v.Telephone Co., 52 Am. Rep. 404; Am. and Eng. Ency. (2d Ed.) 1022; 19 ib. 877; Joyce on Electric Law, sec. 1036, and numerous cases cited by all these. In Telegraph Co. v. Telephone Co.,
This case was approved in Telephone Co. v. Telephone Co.,
The Court says, in the latter case, of the duty and the remedy: "It is very generally recognized that a telephone company acting under a quasi public franchise, is properly classified among the public-service corporations, and as such is subject to (301) public regulation and reasonable control, and is required to afford its service at uniform and reasonable rates and without discrimination among its subscribers and patrons for like service under the same or substantially similar conditions. Godwin v. TelephoneCo.,
These authorities are decisive against the defendants.
Affirmed.