
    The People of the State of New York ex rel. the Oneida Telephone Company, Appellant, v. Central New York Telephone and Telegraph Company and Arthur F. Bender, Respondents.
    
      Mandamus — it will not lie to compel one telephone company to furnish telephone service to a rival company.
    
    The exclusive remedy for the refusal of a telephone or telegraph company to transmit or receive messages for any corporation or individual, as required by section 108 of the Transportation Corporations Law (Laws of 1890, chap. 566), is by an action at law to recover the penalty imposed by that section, and a writ of mandamus will not lie to compel the performance of that duty.
    
      Semble, that such section was not intended to change the common-law rule and to enable one telephone company to compel a rival telephone company to install one of the lat-ter’s telephones in the office of the former company.
    Parker, P. J., and Merwin, J., dissented.
    Appeal by the relator, the Oneida Telephone Company, from an order of the Supreme Court, made at the Madison Special Term, and entered in the office of the clerk of the county of Madison on the 14th day of December, 1898, sustaining "the defendants’ demurrer to an alternative writ of mandamus, which required the defendants to install, in the office of the relator, a telejihone connected with the regular exchange of the defendant, the Central New York Telephone and Telegraph Company, and dismissing the writ.
    
      J. T. Durham, for the appellant.
    
      William S. Andrews, for the respondents.
   Landon, J.:

The defendants, by their demurrer, concede that it was the duty of the defendant company to furnish the relator with a telephone upon its demand and tender of the proper payment; that it refused to perform that duty. Counsel for the defendants concedes that the defendant company, is liable to the relator either for actual damages, or for the penalty of $100, under section 103 of the Transportation Corporations Law (Gen. Laws, chap. 40, Laws 1890, chap. 566), and perhaps for both damages and penalty, but urges that mandamus will not lie, because the relator has an adequate remedy at law.

Each company is a domestic corporation organized for, and engaged in, furnishing telephone service to the public at established rates of payment. Practically the relator desires to employ the defendant company and its appliances in its service, and the defendant company declines the employment and refuses to render the service.

Section 103 of the Transportation Corporations Law provides that “ Every such corporation shall receive despatches from and for other telegraph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by individuals for transmitting despatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith, and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending, or desiring to send, any such despatch and entitled to have the same so transmitted.”

^/"'Suppose, as the relator’s petition will permit us to do, that the relator has five miles of wire in the village of Oneida, and none elsewhere, and that the defendant company not only has the like, amount in the same village, but five thousand miles of wire extending over the whole State; that the defendant company charges an individual fifteen dollars per quarter year for installing a telephone in his office, and allowing him to use it to send messages to any place where said defendant’s lines extend.

The individual might send not more than one message a day. If the relator can, for the same price, procure unlimited service for its patrons, it might daily send a thousand messages, and thus compel the said defendant to do the relator’s work not only for inadequate compensation, but also deprive it of the patrons upon which it depends. The relator could thus make its profits at the said defendant’s expense.

Does the statute contemplate this ? It does not in terms direct one company to install its telephone in its rival’s office. It must receive and transmit its rival’s messages upon payment of the usual charges; but if that means that it must also furnish its rival with an instrument in the latter’s office, such meaning must be implied because such is the usual course of business.yHf the relator, a corporation just starting in business, has this right, it is clear that the damages for withholding it are not susceptible of adequate computation in advance, for it cannot be foretold what its damages will be; and if it is not permitted to enter upon such business, successive suits after intervals of time would not be helpful, for its damages would remain conjectural. Therefore, it cannot be said that it has an adequate remedy at law, that is to say, if the statute has not limited its damages to the penalty.

At the common law, one common carrier could not demand as of right that it be permitted to use its rival carrier’s property for the benefit of its own business. (Express Cases, 117 U. S. 1; Barney v. O. B. & H. Steamboat Co., 67 N. Y. 301; People ex rel. Postal Tel. Cable Co. v. Hudson River Tel. Co., 19 Abb. N. C. 466.)

When corporate or even individual property becomes from its situation and use employed as a monopoly of the public service, its use can be regulated by statute so as to prevent extortion or excessive •charges (Munn v. Illinois, 94 U. S. 113), yet to compel service at unremunerative rates is equivalent to taking private property without just compensation, or taking it from one and giving it to another, and, therefore, not permissible. (Chicago, etc., Ry. Co. v. Minnesota, 134 U. S. 418 ; St. Louis, etc., Ry. Co. v. Gill, 156 id. 649.) It is not to be assumed that section 103 was intended to accomplish any such purpose, but in view of the public franchise given to the corporations to engage in the telephone business, which, unless regulated by law, might become oppressive monopolies, the act was intended to secure to the public reasonable service under reasonable regulations and at reasonable rates. It is foreign to the purpose of the act to permit another corporation, under pretense of using the line of its rival for purely private business, to use it to absorb the very business and profit to which it was intended simply to permit it to contribute upon the same footing as an individual.

Assuming that it is the duty of the defendant company to render the like service to the relator as to an individual, it is plain that the relator here seeks by mandamus to compel the defendant to render much more than the like service; it seeks an. inequality of advantage under pretense of equality. The difference is not merely in degree but in substance and result.

The case of the relator is not within the spirit of the statute, and, therefore, not within the statute itself.

No doubt the defendant company could have made regulations limiting the relator to its individual business, excluding that of its customers. (Shepard v. Gold & Stock Tel. Co., 38 Hun, 338.) But it does not appear to have done so, and whether it is practicable to do so we are not informed. It seems to be clear that the relator’s application does not contemplate such regulations.

But assuming that section 103 has changed the common-law rule as to rival companies, and imposed upon the defendant company the duty to install an instrument in the relator’s office, it has also imposed the penalty for its violation.

As without the statute neither the duty nor the remedy would exist, the remedy prescribed by the statute is exclusive. (Stafford v. Ingersol, 3 Hill, 38; Lowry v. Inman, 46 N. Y. 119.) Thus the relator has an adequate remedy at law for all the damages the law allows it. (See Matter of Baldwinsville Telephone Co., 24 Misc. Rep. 221.) We think mandamus will not lie.

The interlocutory judgment should be affirmed, with costs.

All concurred, except Parker, P. J., and Merwm, J., dissenting.

Interlocutory judgment affirmed, with costs.  