
    The People of the State of New York ex rel. The Western Union Telegraph Company, Relator, v. The Public Service Commission of the State of New York for the Second District, Respondent. The Postal Telegraph-Cable Company, Defendant.
    Third Department,
    January 14, 1914.
    Telegraphs and telephones—validity of order of Public Service Commission forbidding one telegraph company from charging another company for transferring messages.
    Where a telegraph company fails to appeal from an order of the Public Service Commission forbidding the charging of another company for the “originating address” upon messages transferred over its lines, which charge is not made to individuals, and subsequently changes its rules so as not to charge extra for the “ originating address,” but to charge extra for the words made necessary by the transfer, it is not entitled to a writ of certiorari to review the proceedings of the Public Service Commission in making a subsequent order forbidding the extra charge for the words of transfer.
    Smith, P. J., and Lyon, J., dissented, with opinion.
    Certiorari issued out of the Supreme Court and attested on the 26th day of April, 1913, directed to the Public Service Commission of the State of New York for the Second District and the members thereof, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in the making of an order affecting relator’s rates made on the complaint of the defendant Postal Telegraph-Cable Company.
    
      Rush Taggart, for the relator.
    
      Ledyard P. Hale, for the Public Service Commission.
    
      William W. Cook and Ralph H. Overbaugh, for the Postal Telegraph-Cable Company.
   Woodward, J.:

We have before us a writ of certiorari to review a final order of the Public Service Commission of the Second District, and because the questions involved have been so elaborately discussed as to largely obscure the real merits of the controversy it seems necessary to set out the order in full that we may understand just what is being passed upon and what is involved in the determination.. The body of the order is as follows:

‘< It appears from the complaint and the answer herein and the evidence taken at the hearing, that the Postal Telegraph-Cable Company receives messages at competitive points for points at which it has no office, but at which the Western Union Telegraph Company has offices; that the Postal Telegraph-Cable Company transmits the said messages so received to one of its own offices nearest to the point of delivery, and at such office transfers the messages to the Western Union Telegraph Company and pays for the transmission of such messages from the point of delivery to the point of address the regular local rate of the Western Union Telegraph Company for messages between the point at which it receives the message and the point at which it is delivered.
“It further appears that the Western Union Telegraph Company in charging for the transmission of such transferred messages, charges the regular or local rates between the point of transfer and the point of delivery, and in addition thereto charges a further sum for the word ‘ via ’ and the name of the place where the message was delivered to the Western Union Telegraph Company for further transmission.
“ This Commission entered an order on the 8th day of November, 1911, after considering a complaint from the Postal Telegraph-Cable Company, in which order the Commission directed the Western Union Telegraph Company to desist from the practice of exacting a charge from the Postal Telegraph-Cable Company for the originating address and date upon such transferred telegrams in all cases where no charge is made for the originating address and dates upon telegrams delivered to said Western Union Telegraph Company originating at the point of transfer. The Commission issued a further order in that case on the 15th day of January, 1912, in which it denied the application of the Western Union Telegraph Company for a rehearing therein. It appears to the Commission that the same reasoning by which it determined that the charge exacted in that case was unjust, unreasonable and unduly discriminatory now obtains concerning the present practice, and that respondent’s contention that the charge for a message delivered to it by the complainant for the transfer is on the same basis as a charge for forwarded message is not sustained.
“Now, therefore, Ordered (1) That the charge made by the Western Union Telegraph Company to the Postal Telegraph-Cable Company for the word ‘via ’ and the name of the place where the message was delivered to the Western Union Telegraph Company for further transmission is unjust, unreasonable and unduly discriminatory, and that the said Western Union Telegraph Company be and it hereby is required to desist from the practice of exacting said charge from the said Postal Telegraph-Cable Company, in all cases where no charge is made for the originating address and date upon telegrams delivered to said Western Union Telegraph Company originating at the point of transfer.
“ Ordered (2) That this order shall become effective on the 1st day of March, 1913, and that the respondent, Western Union Telegraph Company, shall notify this Commission on or before the 17th day of February, 1913, whether or not the terms of this order are to be accepted and obeyed.”

The above is the only order we have anything to do with upon this review although it seems necessary to an understanding of the questions involved to refer to the previous order. The original proceeding was instituted for the purpose of bringing up the very question now under consideration, but the result of the trial of the issues, after a reopening of the case, was that the Western Union Telegraph Company contended that its charge at transfer points was for the original address and date line, and that this was an added burden which it was required to carry for the Postal Company. For instance, if a message was started from Buffalo over the Postal Company’s lines and was sent to Rochester and there transferred to the Western Union Company to be delivered at a point where there was no Postal Company office, the Western Union would forward the message and charge the Postal Company for the words, “Buffalo, N. Y., Sept. 5,” in addition to tlie words contained in the body of the message. This practice was condemned by the order of the Commission of November 8, 1911. and subsequently the Western Union Telegraph Company changed its rule 8, so that it provided in a case as above supposed that there should be an extra charge for the words “ via Rochester, N. Y.” It is conceded that it is necessary in the transferring of a message from one line to another, for the purpose of the transmitting company’s accounting system, to indicate the transfer point by the words “via Rochester,” but it is strongly urged that the telegraphic word “NY” is not necessary, though this latter point is of no practical consequence in the determination of the law of this case. It is entirely obvious that the practical result of this change of rules was not to materially change the practice, though it did operate to cut down to some extent the number of extra words, for -under the new rule there could be only three extra words, while in the other there might be the words “ Buffalo, N. Y., September 15,” which in telegraph practice would amount to five words, but, broadly speaking, it was the practice of charging for extra words which was condemned by the original order, and not the particular rule of the Western Union Telegraph Company under which the practice was carried on. The changing of the rule by the Western Union Telegraph Company so as to charge for the words inserted in the telegram for its own accounting system, instead of the date line of the place where the message originated, is an effort to accomplish indirectly what could not be done directly, and this practice is universally condemned by the adjudications. (Matter of Henneberger, 25 App. Div. 164, 169; affd., 155 N. Y. 420.) There was no effort to review the original determination of the Public Service Commission beyond making an application for a rehearing, which was denied. That order stands to-day. It commands the Western Union Telegraph Company to desist from the practice of exacting a charge from the Postal Telegraph-Cable Company for the originating address and date upon such transferred telegrams in all cases where no charge is made for the originating address and dates upon telegrams delivered to said Western Union Telegraph Company originating at the point of transfer. It appears to have been the original contention of the Western Union Telegraph Company that the words charged for were the words added at the point of transfer, but this contention was dropped during the progress of the hearing. The matter was, however, before the Commission; it understood, in disposing of the case, the practice of adding the words “via Rochester, N. Y.,” and the adjudication must be held to have been in reference to the transfer of messages as practiced by the Western Union Telegraph Company, and to have held that it was not proper to make a charge for any extra words, whether they be designated as address and date or as “ via Rochester,” etc. The messages then under consideration were of the same character as those which were before the Commission on the subsequent proceeding, and it is merely quibbling to say that by a mere change in the rules of the Western Union Telegraph Company the latter can be permitted to accomplish the practical nullification of the adjudication. In other words, this court cannot review the present order and reverse the determination without in effect reversing the original order, and as to such order the relator has already acquiesced in the determination. The principle has been established that the Western Union Telegraph Company is not to be permitted to make a charge for extra words contained in a transfer message' at the point of transfer as against the Postal Telegraph-Cable Company, and whether those words are the original address and date, or the other words added for the use of the company’s accounting department, can make no difference in the principle involved; the adjudication dealt with the practice as it was carried on at the time, and this practice was not changed in principle at the time of the order now under review.

The writ of certiorari should be dismissed, with costs.

All concurred, except Smith, P. J., dissenting in opinion, in which Lyon, J., concurred.

Smith, P. J. (dissenting):

The result of this order is to compel the Western Union to tranmit for the Postal Telegraph Company for the same, price as would be charged an individual a telegram containing necessarily by concession three additional words. Instead of forbidding discrimination it compels discrimination in favor of a rival line in a matter in which the public has not the slightest interest. I see no justification for the order. Upon a prior application the relator was forbidden by the Public Service Commission to charge for the originating address in a telegram transferred, which was then its custom, instead of charging for what were in fact the extra words via Rochester, N. Y.,” for which no charge was then made. No appeal was taken from that order of the Public Service Commission, which fact is deemed by Justice Woodward as such an acquiescence in the order made as gives to the order the effect of an adjudication binding on relator. I cannot follow this reasoning. The order forbade the charging for “originating address” which was not charged to individuals in telegrams sent from the point of transfer and which custom was technically a discrimination. The relator might well have thought wise to avoid that technical discrimination before asserting its rights in the court. The rule of the company waS, therefore, changed so as not to charge extra for the originating address but to charge extra for the extra words made necessary by the transfer. If the transfer be made at the original address no extra words were necessary and no extra charge made. If the message originated at a point where the relator had no office and the transfer were made at the nearest point where the relator had an office no extra words were necessary and none charged ■ for. The public pays nothing extra, and it is a new function for the Public Service Commission to aid a rival company which has limited facilities by compelling relator to give to that company all the advantages which belong to the relator from having extended its lines to many more points than are covered by the complainant. I think the order should be reversed.

Lyon, J., concurred.

Writ of certiorari dismissed, with fifty dollars costs and disbursements.  