State Public Utilities Commission ex rel. Chicago Telephone Co. v. Postal Telegraph-Cable Co.

Mr. Justice Dunn delivered the opinion of the court: After a hearing upon a complaint of the Chicago Telephone Company that the Postal Telegraph-Cable Company of Illinois was engaged in the furnishing of public telephone service between the cities of Chicago, Joliet, Morris and other cities and towns in the State of Illinois without having obtained a certificate of convenience and necessity, contrary to the provisions of section 55 of the Public Utilities act, the State Public Utilities Commission made an order that the Postal Telegraph-Cable Company of Illinois be “required to cease and desist from the operation of a public telephone business in this State until a certificate of convenience and necessity is first obtained from this commission authorizing it to engage in the operation of such business.” On appeal the circuit court of Sangamon county affirmed the order, and the Postal Telegraph-Cable Company appealed to this court. The appellant is an Illinois corporation having for its object the construction, maintenance and operation of lines of metallic telegraph and of telephone lines in the State of Illinois. Ever since its organization, in 1905, it has been engaged in the public telegraph business. In 1915 it began to furnish to the public telephone service, using for that purpose the same poles and wires used in telegraphing, by means of certain equipment installed at the places where telephone service was furnished, which separates the telegraph currents from the telephone currents and enables the same wires to be used at the same time for both classes of service. In the construction of lines intended to be used both for telephone service and ordinary telegraph service it is necessary to transpose the wires so as to cross them and thus prevent inductive interference from outside lines. For several years before 1912 the appellant in building new lines or replacing old cables used cables of the kind necessary for the telephone business. In 1911 it began the transposition of all its copper wires so that they might be used in connection with’ telephone instruments as well as telegraph instruments, and in 1912 this transposition was complete. In that year a line from Chicago to Peoria was put in operation as a telephone line for the private use of the appellant, but the service was not extended to the public until 1915, after the Public Utilities act went into effect, on January 1, 1914. The appellant insists that the public transmission of intelligence by telephone is included in the telegraph business; that in connecting its wires with telephone instruments it was merely extending its facilities for the conduct of the business in which it was engaged before the Public Utilities act went into effect, and that it was therefore not necessary for it to obtain the certificate of public convenience and necessity required by section 55 of that act. The telegraph is an apparatus or device for transmitting messages to a distance. The name indicates that the messages are written, but, in fact, the early telegraph did not write at a distance,—messages were not graphically expressed. One of the earliest applications of the term was to the semaphore, which is defined as a signal telegraph. An indicator telegraph,. in which signals are given by a pointer or indicator moving in different directions, is another form of telegraph. The Morse system was not written but consisted of a series of dots and dashes in certain order which had a conventional meaning. Afterwards the, dots and dashes were omitted and the operator received the message from the sound of the sounder. Type printing and chemical printing telegraphs were later developments/ and later devices were invented by which the handwriting of a person at one end of the line is reproduced at the other end, and the lines of a drawing may be reproduced in the same way. Another device was invented by which the impulse of sound could be transmitted from one end of a line to the other, and thus a message could be transmitted by the voice of the sender. This was the telephone, which is an instrument for carrying sound to a great distance. The telephone and the telegraph transmit the same message in the same way by the same means,—that is, by sounds through the agency of a current of electricity over a wire circuit. The sounds of the telegraph instrument are the metallic taps of the sounder, which have a conventional meaning; those of the telephone are the words of the speaker reproduced at the other end of the line. Whichever method of communication is employed by the person, association or corporation furnishing the service, substantially the same public function is performed in substantially the same way. Both telegraph and telephone companies are engaged in the transmission of messages between distant places and there is no substantial difference in their character. Soon after the invention of the telephone the Edison Telephone Company of London engaged in the business of furnishing telephone service, and in Attorney General v. Edison Telephone Co. L. R. 6 Q. B. Div. 244, it was insisted that the business was an infringement of the monopoly of the post-master general of the transmission of telegrams and of performing all the incidental service of receiving, collecting and delivering them. It was held that the whole telephone apparatus,—transmitter, wire and receiver, taken together,—formed a wire for the purpose of telegraphic communication. In State of New Jersey v. Central New Jersey Telephone Co. 53 N. J. L. 341, the telephone company was organized under the general Incorporation law as a telephone company, and it sought to exercise the power of eminent domain conferred upon telegraph companies. The court held that the telephone was a novel method of accomplishing the object for which telegraphs were established; that a corporation created under an act which empowered it to conduct a line of telegraph can conduct it by means of the telephone, and that the telephone company was entitled to exercise the power of eminent domain under the Telegraph act. In People’s Telephone and Telegraph Co. v. Berks and Dauphin Turnpike Road, 199 Pa. St. 411, a statute conferring upon telegraph companies the right to construct lines, of telegraph along and upon any public road, etc., was held to apply to telephone companies as well as to telegraph companies. In Davis v. Pacific Telephone Co. 127 Cal. 312, it was held that a statute making it a criminal offense to cut telegraph wires applied to telephone wires. Counsel for the appellee argue that the legislature has long recognized a distinction between telegraph and telephone companies and has enacted separate legislation in relation to their rights, powers and duties to the public. The act in relation to telegraph companies was passed in 1871, before telephones were known, and they are therefore not named in it. No further legislation in regard to either telephone or telegraph companies occurred until 1903, except an act in 1887 providing that no prescriptive right could be acquired by the attachment or extension of any wire to or over any building or land for telegraph, telephone, electric light or other electric purpose, and an act in 1895 providing a penalty for tapping telegraph or telephone wires. In 1903 the existing act in regard to telegraph companies was declared applicable to telephone companies. The legislature has recognized no distinction between telegraph and telephone companies but has regarded them as of precisely the same character. The evidence shows that to enable the appellant to use its telegraph wires as a part of a telephone system it was necessary to add at the end of each telephone circuit a composite or simplex equipment consisting of coils with a large amount of iron wire in them, and also condensers, as well as to add switch-boards and telephone booths and instruments. These would all be in the building with the ordinary telegraph instruments. In our judgment these additions did not constitute the construction of any new plant, equipment, property or facility but were only in extension of the service it was already furnishing. The judgment of the circuit court will be reversed and the cause remanded, with directions to set aside the order of the commission. Reversed and remanded, with directions.