Colorado Telephone Co. v. Fields

OPINION OF THE OOURT. PAEKEE, J. From the foregoing statement it appears that there is a single question involved in this appeal. viz., What is a proper construction of tire charter and contract of appellant? Appellee contends in support of the judgment of the court below that in construing a grant of power to corporations of the class of appellant, it is to be strictly construed against the grantee and that nothing passes but what is combed in clear and explicit terms and cites in support of his proposition Oregon Ry. and Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1; Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24, and many other eases from the Supreme Court of the United States. Appellant does not deny this proposition, but, on the other hand, expressly admits it as correct. Appellant, however, attempts to draw a distinction between the grant of a right of this nature and a contract made in pursuance of such grant, and as a condition therefor. He claims that a different rule of construction is to be adopted in regard to the contract. Counsel cites in support of this proposition C. & P. Tel. Co. v. Manning, 186 U. S. 238. We do not deem that ease as applicable to the facts in this case. In that case the question was whether an act of Congress prohibiting a charge of "more than $50 per annum for the use of a télephone on a separate wire/’ included such additional equipment as a wall cabinet, auxiliary bells, etc. In view of those facts, the court said: "In other words, there is no presumption of an intent to interfere with the management of a private corporation of its property any further than the public interests require, and so no interference will be adjudged he3rond" the clear 'letter of the statute.” On the other hand, appellee cites Omaha Water Works Co. v. Omaha, 147 Fed. 1, a case in the Circuit Court of Appeals for the Eighth Circuit, in which the court, after examining numerous cases, extracts from them the following rule, which we adopt, viz.: "Where the meaning of a grant or contract regarding any public franchise is ambiguous or doubtful, it will be construed favorably to the rights of the public. Where the grant or the contract is clear'and plain it will be protected and enforced.” 1 It thus appears that the true rule is that both the grant and the contract, in case of ambiguity or doubt, are to be construed favorably to the rights of the public, and we so hold. 2 , In the consideration of this contract a certain other well known rule of construction is applicable. Where a. contract as a whole discloses a given intention, if certain words or clauses taken literally would defeat the intention, it will be construed, if possible, so as to be consistent with the general intention. 2 Page on Con., Sec. .1113. Another consideration entering into a proper construction of this contract is as to the proper definition of the words "per annum” in relation to the rental charge. The words "per annum”, of course, usually mean by the year, but they have often been held to have a somewhat different me'aning. Thus, in Ramsdell v. Hulet, 50 Kan. 440, the words "per annum” in a note were held to mean merely the rate of interest and had nothing to do with the time when the interest was to be paid. To the same effect, Cooper v. Wright, 23 N. J. L. 200, and Tanner v. Investment Co., 12 Fed. 648. In State v. McFetridge, 64 Wis. 130, the court held, that in fixing the rate of license for railroads, "per annum” meant in the year preceding the date of fixing the license, Cassidy, J., strongly dissenting, and applying the same construction to the words "per annum” which we do in thirs case. In Haney v. Caldwell, 35 Ark. 156, it was held that a contract to pay an engineer $2500 per annum salary was not an employment for a definite period, but that the words "$2500 per annum” were a mere measure of compensation. In Stanford v. Varnish Co., 43 N. J. L. 151, a contract increasing the salary of an employee in the sum of $104 per annum merely increased the weekly salary and did not convert the contract into an annual one. The words "per annum” were used only as a mode of computation. In view of what has been heretofore stated we may approach, the consideration and construction of this contract as follows: 3 A public service corporation is desirous of securing a charter authorizing it to use the streets of the City of Albuquerque for its purposes in the construction, maintenance and operation of a telephone system. The city council is desirous of protecting tire people of the City of Albuquerque from unjust charges for telephone service, and consequently exacted from the public service corporation the contract in question. It is perfectly apparent that the city council did not intend to prescribe maximum rental rates for only a portion of its inhabitants within the district mentioned in the contract. It proposed to prescribe maximum rental rates for all of its people. It, therefore, did not contract merely for those people who would make an annual contract for a telephone, but the words “per annum” were inserted in the contract as furnishing a mode of computation merely for a rental charge. This evidently was the sense in which the words were used by the city. To conclude otherwise would be to convict the city council of the grossest failure in duty. In view of the rules of construction herein before noted, there seems to be no difficulty whatever in holding that this is the true construction to be placed upon this contract. It is clearly susceptible of such construction and the rules of construction seem to require it. 4 5 Appellant seeks to justify the charges for installation and removal on the ground that they are made in pursuance of a reasonable regulation on their part. We cannot understand, however, that a regulation can under any circumstances be adopted by a public service corporation which will result in increasing a rental charge above what has been fixed by contract as a maximum charge. This was attempted in Johnson v. State, 113 Ind. 143, and it was held to be invalid. And the obligation to furnish telephone service at not to exceed a specified rental charge certainly must include the installation of a usable appliance connected with a system. For the reasons stated the judgment of the lower court will be affirmed; and it is so ordered.