
    Horton D. Wright, Respondent, v. Glen Telephone Company, Appellant.
    Third Department,
    May 2, 1906.
    Pleading—complaint asking mandatory injunction to restrain unjust discrimination in rates of telephone service sustained—corporations — telephone company not bound by rates stated in municipal franchise.
    A complaint alleging that a telephone corporation unjustly discriminates against the plaintiff on account of his profession and refuses to supply him with service at reasonable rates, and asking a mandatory injunction, states a cause of action and is not subject to demurrer.
    But such plaintiff is not entitled to telephone service upon terms stated in a franchise granted to the telephone company by a municipality. The power of a municipality over telephone companies is solely a police power and cannot be used for the purpose of exacting benefits for itself or citizens. A telephone company derives its power to construct lines from the State and not from the municipality.
    Hence, any agreement as to rates of service contained in the municipal franchise is without consideration and is not enforcible. Nor is the corporation estopped because it has complied with terms of such franchise with which it was not legally required to comply.
    Appeal by the defendant, the Glen Telephone Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Fulton on the 15th day of September, 1905, upon the decision of the court rendered after a trial at the Fulton Trial Term, before the court without a jury, overruling the defendant’s demurrer to the complaint.
    
      Fred. Linus Carroll, for the appellant.
    
      Horton D. Wright, for the respondent.
   Smith, J.:

The defendant challenges plaintiff’s complaint as not stating' facts sufficient to constitute a cause of action. If any cause of action be therein alleged the demurrer was properly overruled.

From the complaint it appears that the defendant is a telephone corporation, operating its lines in the city of Gloversville, Fulton county, and the adjoining places. The plaintiff is a practicing lawyer in the city of Gloversville. The complaint fairly alleges that the defendant refuses to supply telephone service to him at reasonable rates and refuses to give him telephone service except upon the payment of three dollars and, fifty cents per month, while, two dollars per month is a reasonable charge for such service, and that defendant unjustly and unlawfully discriminates, as between him and members of other professions and other places of business, and seeks to charge him an excessive rate, more than is charged to other professions and other places of business, to which like service is supplied. Before the action was brought service had been rendered, but was suspended at the time the action was brought. Plaintiff seeks the mandatory injunction of the court to compel defendant to furnish such service at a reasonable rate to be fixed by the court. This would seem to constitute a causé of action within the authorities. (Sterne v. Metropolitan Telephone Co., 19 App. Div. 316; New York Cement Co. v. Consolidated Cement Co., 37 Misc. Rep. 753 ; Root v. Long Island R. Co., 114 N. Y. 300; Lough v. Outerbridge, 143 id. 278.)

Plaintiff’s contention, that he is entitled to service upon the terms stated in the so-called franchise given to the defendant from the city of Glovers ville is, we think, not sound. The right to construct its line along and upon the highways is given by the statute. . (Trans. Corp. Law,[Laws of 1890, chap. 566J, § 102.) By subdivision 41 of section 57 of chapter 2.75 of the Laws of 1899 the municipal authorities of the city of Glovers ville are only given the right to regulate the setting and stringing of telegraph, telephone, electric*light and power, and other poles and wires in said city.” The power of the municipality is simply a police power to be exercised for the protéction Of the citizens. It cannot Use that power for the purpose of forcing a contract with a telephone company for benefits to itself or to the citizens. In Farmer v. Telephone Co. (72 Ohio St. 526) the headnote reads as follows: “ Telephone companies, organized in this State obtain power to. construct their lines along the streets and public ways of municipal corporations from the State by virtue of sections of the Revised Statutes, 3454 to 3471; inclusive, and not from the municipal authorities. The latter have the power, under section 3461, to agree. with such companies as to the mode of use, and upon compensation for such use, but not beyond what may be .necessary to restore the streets to former state of usefulness. They have not power to' exact or receive compensation by way of free telephone service for themselves or for citizens, or to fix rates for telephone charges. Where such power to so obtain free service and fix rates is attempted to be exercised by the passage of an ordinance incorporating such provisions, the company will not be required to adhere to them by a court of equity by mandatory injunction, even though it be shown that the rates agreed upon and incorporated in the ordinance were so fixed at the solicitation of the company and that the company thereby obtained a benefit which it would not have otherwise obtained in a mode of use of the streets more beneficial to it and more inconvenient to the public.” From a reading of that case it appears that the statutes under which that case was decided did not differ materially from the law of our own State. (See, also, Barhite v. Home Telephone Co., 50 App. Div. 25 ; Macklin v. Home Telephone Co., 1 Ohio Cir. Ct. Rep. [N. S.] 373-383; 14-24 O. C. C. 446-454 ; affd. June, 1904, under title of City of Findlay v. Findlay Home Telephone Co., 70 Ohio St. 507; State ex rel. Wisconsin Telephone Co. v. City of Sheboygan, 111 Wis. 23 ; City of Marshfield v. Wisconsin Telephone Co., 102 id. 604; State ex rel. Garner v. Telephone Co., 189 Mo. 83; 88 S. W. Rep. 41.) In fact it can make no contract with the company which could not be altered by a subsequent municipal council if necessary for the protection of the citizens. (Bronk v. Barckley, 13 App. Div. 75 et seg ; Stone v. Mississippi, 101 U. S. 814.) If this be sound law the franchise can in no way be a contract binding upon the defendant as to compensation for service for lack of consideration. The defendant cannot be estopped because it has complied so far with terms with which it was not required" legally to comply. No harm has been • done this plaintiff or the municipality and I can see no element of estoppel in any act done by the defendant under the terms of the so-called franchise.

The interlocutory judgment must, therefore, be affirmed, with costs, with the usual 'leave to withdraw the demurrer and answer upon payment of the costs of' the demurrer,

Cochrane, J., concurred ; Chester, J., concurred upon the ground first stated; Parker, P. J., not voting; Kellogg, J., not sitting.

Interlocutory judgment affirmed, with "costs, with usual" leave to defendant to withdraw demurrer and answer upon payment of costs of demurrer and of this appeal. 
      
       See Bates’ Anno. Ohio Stat. (4th ed.)—[Rep.
     