Horton v. Interstate Telephone & Telegraph Co.

ClaeKSON, J. Tbe defendant is a public service corporation. The present action is in its nature a mandamus to compel defendant to perform a duty which plaintiff alleges it owed him as a public service corporation and install a telephone in plaintiff’s place of business and place the name T. J. Horton Company in defendant’s telephone directory. A mandamus is a proper remedy in such cases when the facts warrant. Godwin v. Telephone Co., 136 N. C., 259; Telephone Co. v. Telephone Co., 159 N. C., 16; Walls v. Strickland, 174 N. C., 298; Public Service Co. v. Power Co., 179 N. C., 18; Public Service Co. v. Power Co., 180 N. C., 335; R. R. v. Power Co., 180 N. C., 422. In re Utilities Co., 179 N. C., at p. 159, we find: “The power of the' Legislature, either directly or through appropriate governmental agencies, to establish reasonable regulations for public service corporations in matters affecting the public interests is now universally’recognized, and the principle has been approved with us in well considered decisions dealing directly with the question,” citing numerous authorities. The General Assembly of North Carolina has placed certain public service corporations and businesses within control of the Corporation Commission, C. S., 1035(2), as follows: “Telegraph and telephone companies and all other companies engaged in the transmission of messages; over persons and individuals owning and operating telegraph or telephone lines in North Carolina and who rent phones and wires to persons generally.” The Corporation Commission is given power to fix rates, etc., for public utilities, C. S., 1066(2), as follows: “The transmission and delivery of messages by any telegraph company, and for the rental of telephone and furnishing telephone communication by any telephone company or corporation.” On 13 October, 1931, “the plaintiff made application for the installation of a business telephone to be installed at No. 121 Market Street in the city of Durham, North Carolina, and with his application made a deposit of $9.50 to cover installation charges and local rent for one month in advance; and that the defendant issued to plaintiff its receipt for the same.” The next day. after this receipt was given the defendant refused to install the telephone unless a deposit of $25.00 in addition was made by plaintiff. The defendant contending that the Horton Electric Company, a corporation of which plaintiff had been president and which had ceased to do business sometime before, owed it $21.05. Plaintiff contended that he was not liable for the payment of the bill. *616 The court below found certain facts: “The managers and superintendents of the company follow an established rule of requiring deposits from all persons who have bad credit ratings and/or who are considered financially irresponsible and that said regulation is an established custom of such officers of the company in the management and conduct of its business; and that said deposits range from $15.00 to $25.00, depending upon the nature of the business to be conducted by the applicant, the estimated probable number of long distance telephone calls and the use to be made of the telephone service by the applicant; that this rule has never been formally adopted at a meeting of the stockholders or board of directors of the company, and has never been published, but is an established rule that has been in effect by the management over a long period of time. . . . That the defendant’s officers and agents invoked its rule of requiring a deposit from applicants who have bad credit ratings and/or who are financially irresponsible for the reason that they considered the plaintiff to be financially irresponsible and of a bad credit rating; and that they offered to install a telephone and furnish telephone service to the plaintiff if he would make a deposit of $25.00 as a guarantee of payment for future service in the nature of long distance telephone calls and local service charges; that the plaintiff refused to make said deposit and demanded the installation of a telephone without said deposit. . . . That the said custom or regulation of the company in requiring a deposit from all persons who have a bad credit rating and/or who are financially irresponsible is never enforced except when applicant is considered financially irresponsible and a bad credit risk. The defendant has about fifty-five hundred subscribers and a deposit of $25.00 has been required of only a few of this number — several individuals. The deposit of $25.00 is refunded when the contract under which it is made is terminated and all amounts due the defendant for its services are paid.” In Walls v. Slrickland, supra, at p. 300, this Court speaking to the subject, said: “In Telegraph Co. v. Telephone Co., 61 Vt., 241, 5 L. R. A., 15 Am. St. Rep., 893; S. c., 3 Am. Elec. Cases, at p. 435, it is said: ‘A telephonic system is simply for the transmission of intelligence and news. It is, perhaps, in a limited sense, and yet in a strict sense, a common carrier. It must be equal in its dealings with all.’ That case cited many authorities, which are, indeed, uniform, that the telephone business, like all other services fixed with public use, must be operated without discrimination, affording (equal rights to all, special privileges to none). ‘Telephones are public vehicles of intelligence, and they who own or control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railway company, *617 as a common carrier, can rightfully refuse to perform its duty to the public,’ is said in Telephone Co. v. Telegraph Co., 66 Md., 299, at p. 414, 59 Am. Rep., 167, which is another very instructive and well-reasoned case upon the same subject. Telephone companies are placed by our Corporation Act on the same footing, as to public uses, as railroads and telegraphs.’ ” In 37 Cyc. of Law and Proe., at p. 1654, we find: “A telegraph or telephone company cannot arbitrarily refuse to furnish service to a particular customer, if the service demanded be of a character which it holds itself out as prepared to furnish to the public generally, or to the public of the applicant’s class. It cannot require an applicant for service to contract not to mate use of the facilities offered by a rival company, or not to use a telephone to call messengers from another office, or refuse such services on the ground that the applicant had broken a previous agreement to this effect. It cannot refuse service to a person offering to pay therefor, or require as a condition of furnishing service that such person pay^ an old debt or settle a disputed claim growing out of a previous transaction, even though of the same kind.” O'Neal v. Citizens Pub. Service Co., 157 S. C., 320, 70 A. L. R., 887; Woodley v. Telephone Co., 163 N. C., 284; Cumberland Tel. etc. Co. v. Hobart, 89 Miss., 252; see Southwestern Tel. & Telephone Co. v. Danaher, 238 U. S., 482. The present action concerns an intrastate transaction. The facts disclose that “the managers and superintendents of the company follow an established rule,” etc. “This rule has never been formally adopted at a meeting of the stockholders or board of directors of the company and has never been published,” etc. Nor does it appear that this rule has ever been given approval by the Corporation Commission, or indeed that it has ever been brought to the attention of the Corporation Commission. Plaintiff paid the usual deposit of $9.50. This controversy involves the $25.00 additional deposit. It may be that the exigencies of the telephone business are such as to require, under certain circumstances, if reasonable and not arbitrary or discriminatory, such a regulation, but as to that the Corporation Commission, under the law perhaps would be the proper agency to determine that fact. On the present record we think the court below correct in the judgment rendered. Affirmed.