Beach v. Chicago Telephone Co.

Windes, J.: As I understand counsel on both sides, they concede the law to be that this court can not in this case fix what it deems a reasonable rate,-—am I right ? Me. Mocee : Yes. Mb. Holt: So far as we are concerned, certainly. The Coubt: Is that the way you look at it, Mr. Beach? Mb. Beach: Yes. The Court: I was in doubt all along in the case as to whether the court had any power with-regard to the fixing of rates and inasmuch as counsel on both sides' agree, I will not take the time to investigate the law on the question, inasmuch as I have so many different cases pressing upon me for hearing just now. Neither will I attempt to review the numerous authorities and arguments of counsel in the case. It is. a very interesting case and I would be glad to do it, but there-is a limit to my powers as well as the defendant’s powers. All through the trial of the case, it was a very uncertain question in my mind as to whether this contract which prevents the complainants in this case from making any foreign-attachments to the defendant’s wires was a valid contract and whether or not the rule of the company in; that regard was; a reasonable one, but after listening to all the arguments in the case, I think, considering the character of the service that the defendant company has to render, the extent of that service and especially the concession of complainants’ counsel in this case—and I think it was a reasonable concession in view of all the evidence in the case—that inferior instruments and improper- installments would have a detrimental effect upon the service that the defendant is performing for the public here, the conclusion is justified that the contract is not an invalid contract, that the regulation of the company in that regard is not an unreasonable one, because to protect its service and make that service practical to its 117,000 subscribers here in Chicago, I think requires that the company not only have the right to inspect and repair all its apparatus but that it should have the complete control of the apparatus and should have the right, under reasonable regulations, to say whether or not there shall be any foreign attachments to its telephone system in the city. Of course, what would be a reasonable regulation in’ the ease of attachment of foreign instruments does not arise in the case and the court could only determine that, I should think, upon a specific case made. And although I think the weight of the evidence is, in this case,' that the complainants’ foreign attaehments0do not seriously interfere with the defendant’s service, it means a great deal more to the defendant to allow these complainants to attach instruments than is involved in this specific ease. If the complainants are allowed to attach foreign instruments, then every other subscriber in the city would have .the same right and I can see that that would be likely to produce at least very serious disturbance and perhaps very seriously affect the service of the remaining subscribers, even if a few thousand only did what the complainants did in this case. I will not go into the details of my reasoning in that regard; suffice it to say that I think the testimony of most of the witnesses—including several of complainants’ witnesses—is such that the results which I have suggested are likely to follow. The arguments of counsel as to the details of the possibilities of the effect upon the service, I think are reasonable arguments. I have no doubt, from the evidence which has been produced here, that the charge which the defendant is shown to have demanded of the complainants for extension instruments is a very unreasonable charge. I base this upon the schedule of prices charged in other cities and upon the charges made by the defendant itself here in the city. But, inasmuch as counsel have conceded that this court has no right to determine what is a reasonable charge, there is no use of going any further in that regard. If I am right in the position that the complainants under the contract and under the regulations of the company had no right to make the foreign attachments here, then this bill can not be maintained upon the theory that they have the right to have the status which was in existence at the time of the filing of this bill maintained and the injunction which was issued in that regard in the first instance made perpetual, or at least continued until some time and under certain conditions which it is claimed that the court might specify, because by reason of those foreign attachments the court has no right to give any relief. I think, however, that because the defendant has demanded of these complainants an unreasonable price for the extension instruments,—while because of that the complainants had no right by virtue of their contract and under the regulations of the company to make foreign attachments—they are not deprived of all right to protection in a court of equity. They have a contract here which allows them telephone service “unlimited,” I believe is the expression used in the contract, I have not looked at it—and since the defendant has done what seems to the court an unreasonable thing, I think that the complainants ought to be protected in their telephone service by the main instrument, notwithstanding these foreign attachments, if they will now comply with their contract and disconnect the foreign attachments. They would then be entitled to an injunction against the defendant from interfering with their telephonic service over the one instrument and I think that is the extent to which the court can go in this case. Because of that situation, I do not think it is necessary for the court to go into any discussion or decision as to whether or not there is a remedy at law here by way of mandamus to compel the defendant to do its duty and therefore that the complainant can have no relief at all. So, I think that a decree should be entered in this case allowing the complainants an injunction protecting them in the use of their main instrument according to their contract on the condition that they disconnect the foreign attachments. That will be the decree of the court. NOTE. In Gardner v. Providence Telephone Co., 23 R. I. 262, 49 Atl. 1004, 55 L. R. A. 113, it was held that a telephone company, though having a monopoly of the business in a particular city, may deprive a customer of service upon his refusal to discontinue the use, in connection with its wires on his premises, of extension instruments not furnished by. it, where it is able and willing to furnish such instruments as efficient and convenient as the state of the art affords, upon reasonable terms. It was also held that if the company refuses to furnish extensions except at exorbitant rates, the subscriber has the right to install his own equipment.