SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. STATE et al., 207 S.W. 308

PHILLIPS, C. J. The Act of 1907 (Acts of Thirtieth Legislature, 462) provides that all companies, individuals, firms or corporations doing a telephone business in this State shall be compelled to make physical connections of their toll lines at common points for the transmission of messages or conversations from one line to another, with the proviso that in no case shall such a line be compelled to receive from the line of another company and transmit to its final destination any message originating on its own line.

Where an incorporated city is a common point of two such lines, the act authorizes a public hearing by the city council for the purpose of determining whether in the interest of the public convenience it is necessary for such a connection to be made, and to order it made if found to be necessary, upon such conditions and division of expense as the council shall provide. Provision is made for an appeal from such order by any line thus affected by it to the court of appropriate jurisdiction; and for the recovery by the state of penalties if the order be not complied with.

In August of 1911 Childress, Texas, was a common point for the lines of the Southwestern Telegraph & Telephone Company extending from Childress to Paducah, Texas, and other points in the State, and the Padu-cah Telephone Company, extending from Chil-dress to Paducah.

In that month the city council of Childress ordered a hearing for the purpose of determining whether in the interest of the public a physical connection of the two lines at Childress should be made, and after such hearing ordered that the connection be made upon the switchboard of the former company, the Paducah Company being required to furnish at its own expense a suitable line of poles and wires to the office of the Southwestern Company, and the additional expense of making the connection to be borne equally by the two companies.

The order provided that for all connections, in the transmission of messages, made by the line of the Paducah Company with any local subscriber of the Southwestern Company at Childress, there should be paid by the Padu-cah Company to the Southwestern Company a charge of five cents for each connection; and that for all connections of its line with that of the Southwestern Company for any other point than Childress on the line of the latter, a charge of two and one half cents for each connection. Neither company appealed from the order of the council.

The order was not .complied with, ■ and this suit for penalties under the act resulted. Judgment was rendered against the Southwestern Company, but in favor of the Paducah Company. The evidence supports the judgment, in that it very plainly shows that the Paducah Company complied with the order and endeavored to and was willing to make the connection, but that the Southwestern Company refused to make it.

The connection at Childress had formerly been maintained by the two companies under a contract between them, but by act of the Southwestern Company it was discontinued shortly before 'the city counoil made its original order for a hearing. It is plain that the order of the city council contemplates that the Southwestern Company may charge its proper toll rate for its service in respect to all messages or conversations between points upon the line of the Paducah Company and those upon its own line, in addition to the connection charge provided for in the order.

It is also clear that under the act it could not be required to afford its service for the transmission of any message or conversation originating at a point on its own line, such, for instance, as Paducah. The order is to be so construed. The order of the council is assailed by the Southwestern Company as a taking of its property without compensation and without due process of law. The act, in its authority for the order, is challenged upon the same grounds. In our opinion compliance with the order will not result in any “taking” of the company’s property in any constitutional sense.

Its effect is only to require that by means of the connection upon its switchboard it afford, for compensation, the service of its toll lines to the public at certain points upon the Paducah Company’s line. In .all such cases those patrons will be as fully its patrons as those of the Paducah Company. In extending the service it will remain in undisputed control of all .of its property, including the switchboard. The operation of its lines for the purpose of the service will be entirely in its hands. No different use or burden will be imposed upon its property.

The company is merely made to provide a facility whereby patrons of another line may, by means of that line and for a charge paid the company for the service, have access to its toll lines. If this be a “taking” of the company’s property, the property of such a company is likewise taken every time the company is made to connect its line with the store-house or residence of a local subscriber as the means of affording him similar service. It is not a taking of property.

It is merely a reasonable regulation of the company’s service for the public convenience which the State may prescribe in the exercise of its police power, and to which the company as a common carrier is properly subject. The regulation does not differ in principle, 1 manner or degree from those requirements I found in the statutes of every State which compel the physical connection of different railway lines at junction points, and their acceptance, interchangeably, of traffic from each other.

Every argument that can be made against the validity of this act and the order of the council made in pursuance of it, could with equal force be made against those statutes. They equally require the larger lines of railway to physically connect with smaller lines and thus afford their service to the public at points not on their lines. They equally require, and in the same manner and to the same extent, the use of the property of one railway line for the benefit of original patrons of another line. Yet the validity of such statutes against the challenge here made of this act and order is not open to question.

Wisconsin, etc., Railway v. Jacobson, 179 U. S. 287, 21 Sup. Ct. 115, 45 L. Ed. 194; Grand Trunk Railway v. Michigan Railroad Commission, 231 U. S. 457, 34 Sup. Ct. 152, 58 L. Ed. 310; Railway Co. v. Railroad Commission of Texas, 99 Tex. 332, 89 S. W. 961; Jacobson v. Wisconsin, etc., Railway, 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389, 70 Am. St. Rep. 358. The same reasons which sustain the constitutionality of such statutes, make valid this act and the order of the Childress city council under it.

The cases which relate to legislative acts requiring the connection of telephone lines are not numerous, but the following authorities may be referred to as sustaining such exercise of the legislative authority: Pond on Public Utilities, § 554; Jones on Telegraph & Telephone Companies, § 263; Pacific Telephone & Telegraph Co. v. Hotel Co. (D. C.) 214 Fed. 666; Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245, 147 N. W. 674.

The petition was not subject to a general demurrer for failure to allege that the Paducah Company had fully complied with the' order, so as to make the connection possible on the part of the Southwestern Company. Both companies were sued for failure to comply with the order. The petition charged that — “Neither had been prevented from making the connection with the line of the other, but that each had failed and refused to make the connection as ordered.” This was a sufficient allegation of delinquency on the part of both companies, and, as a pleading, would sustain a finding that either was at fault.

The judgments of the District Court and Court of Civil Appeals are affirmed. @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes