McCardle v. Akron Telephone Co.

McMahan, C. J. This is an appeal from a judgment vacating and setting aside an order of the Public Service *61 Commission, made March 23, 1923, requiring appellee to permit an additional drop to be connected with its switchboard- for the purpose of providing additional facilities for telephone toll service between Rochester and Akron. Appellee’s complaint to vacate this order was filed May 17, and summons made returnable June 4, 1923. The complaint alleges that the order of the commission should be vacated, because it is “insufficient” in that it is unreasonable, for the reason that appellee has a line extending from Akron to a point three miles from Rochester over which a long distance line could be extended; and that the order is unlawful in that it is confiscatory and takes the property of appellee without just compensation. It is not' necessary that a long statement be made concerning the facts leading up to and connected with the making of the order by the Public Service Commission of which appellee complains. The Rochester Telephone Company owns a telephone plant at Rochester and has toll lines to a number of smaller' towns nearby. It has had a toll line from Rochester to Akron for many years, where it was connected with the switchboard of appellee company. The latter company owns and operates a telephone system at Akron and also has lines extending into the surrounding country, one of which lines extends to a point about three miles from Rochester. In order that the patrons of these companies might reach distant points, they were compelled to do so over what is generally known as the “Bell system.” Prior ‘ to May, 1921, the Akron company was connected with the Bell system through Wabash. For some reason the Bell people asked the Rochester company to take the Akron toll business, which the Rochester company agreed to do, after which the Bell people notified the Akron company that it was discontinuing the Wabash service and that it should put its long distance calls *62 through the Rochester exchange. The business increased so that the one toll line between the two points was not sufficient to take care of the business. The public was demanding and insisting on better or quicker service. It is conceded that another toll line between Akron and Rochester is a public necessity. On the hearing before the Public Service Commission, appellee contended that instead of being required to permit the Rochester company to connect a second toll line with its switchboard, it should be permitted to extend its line from Athens to Rochester and there connect with the Rochester plant. It also contended that the share of the fees or telephone charges it was receiving under the arrangements it then had with the Rochester company was not sufficient, and that the commission should, at that hearing, determine the part of such charges each company was entitled to receive, as well as determine the method of providing for the additional toll line. The commission decided that the public would be best served by allowing the Rochester company to extend another toll line to Akron and ordered appellee to provide the drop connection for that purpose. No order was made concerning a division of the tolls. The commission, referring to this matter in its order, said, if there was not a proper division of the tolls and appellee was not compensated in a proper amount, the law provided a proper method of settling that question, evidently meaning, that, if after the installation of the additional line, appellee thought it was entitled to a larger share of the tolls than it was then getting, it should file its petition with the commission for an order fixing the compensation it should receive for taking care of the toll service. Later, the court in the instant case, after having heard evidence in addition to that introduced before the commission, caused a transcript of the same to be certi *63 fied to the commission for its consideration and, on September 13, 1923, the Public Service Commission, made an order as follows: “That the Akron Telephone Company be, and it is, hereby directed within thirty days from the date of this order to furnish such terminal equipment facilities on the Akron switchboard as will enable the Rochester Telephone Company to terminate an additional long distance line between Rochester and Akron, and that the Rochester Telephone Company bear and assume the expense of furnishing such terminal facilities. It is further ordered that upon the completion of such additional line between Rochester and Akron and the installation of such terminal equipment facilities as are herein ordered, the Akron Telephone Company shall receive as its compensation twenty-five per cent, of all moneys collected by it for long distance calls originating at Akron and terminating at Rochester, or passing through the switch board of the Rochester Telephone Company.” This new or modified order, after having been certified to the trial court, was by the court vacated and set aside. In this we are of the opinion the court erred. It .is conceded that public convenience and necessity required an additional long distance telephone line between Rochester and Akron, and appellee makes no claim that the connection as ordered by the commission will result in any detriment to the service. Its only contention is that the court found that the connection as ordered would result in a substantial loss to it. That is, that the twenty-five per cent, of the money collected by it for long distance calls as ordered by the commission will result in a financial loss to it, and, for that reason, the order of the commission, as an entirety, should be set aside and the judgment of the court affirmed. We are not impressed with this contention. *64 The order of the commission relating to compensation is in keeping with the arrangements under which the two companies have been operating for some time, and there is no evidence that appellee will be required to employ any additional help because of the additional telephone line. Whether it will suffer any loss financially because of the additional work cannot be ascertained with any degree of certainty until after the additional connection has been made and operated a sufficient length of time. The public should not be required to suffer while the telephone companies are quarrelling over a division of the moneys to be collected in the future. The proper time to settle that question will be after the installation of the additional line. It is not the business of courts to make rates for public utilities or to direct what division of rates shall be made between connecting utilities. That duty belongs to the Public Service Commission. Trouble ■ along this line commenced when the courts first began to interfere with the rate-making powers of the commission. And this prompts us to say that courts should not interfere in such matters except when the evidence clearly shows the action of the commission will result in an irreparable loss to the complaining party. The evidence wholly fails to show any such loss to appellee. The judgment below should have been in favor of the commission. Judgment reversed, with directions for further proceedings consistent with this opinion. Dausman, J., absent