
    DUPLICATION OF TELEPHONE SERVICE.
    Common Pleas Court of Clinton County.
    The Clinton Telephone Co. v. The New Burlington Mutual Telephone Co.
    Decided, 1912.
    
      Telephones — Construction of the. Public Utilities Act With Reference .to .Extension, of Lines Into Territory Already Occupiedr-rSection. . 614-52. ' .
    The public service commission of Ohio-has full - authority to regulate-extension of telephone lines into territory covered by the charter - rights -of the company proposing to make such extensions, where . .such territory is. already occupied, by the lines of another .tele-, phone company.
   Brown, J.

This' ease comes before' thé cotirt upon a general "demurrer' to'"the answer, which counsel agree' wili determine- the qu'es-' tioh involved:' The plaintiff in its petition asks for an injun'c-' tion restraining the defendant' from' extending its telephone' linés from a pdint' it occupied July"Tst, 1911, into localities'occupied by plaintiff ' from 'the'vicinity- of New Burlington,'tó and -: through Kingman and out to Wilmington, Oakland and Harveysburg pike and thence to Oakland and Wilmington.

The plaintiff states that it is a corporation under the laws of Ohio for the purpose of owning and operating a telephone plant in Clinton county, its principal office being at Wilmington; that it was chartered in 1899 and has a complete telephone system in said county; that the defendant is a similar corporation and has a small plant in and near the unincorporated settlement of New Burlington. The plaintiff states that the defendant has never extended its lines nor attempted to -operate its system in the immediate vicinity of New Burlington, but that, the plaintiff has fully covered the territory over which' the defendant seeks to extend its lines and is able, willing and ready to give adequate service to all persons in said localities. It states the passage by the legislature of the public utilities act of May 31st, 1911, creating a public service commission and numbered Section 54 of Vol 102 O. L., p. 564, which provides:

“No telephone company shall exercise any permit, right, license or franchise that may have been heretofore granted'but not actually exercised, or that may hereafter be granted to own or operate a plant for the furnishing of any telephone service thereunder in any municipality or locality where there is in operation a telephone company furnishing an adequate service, unless such telephone company first secures from the commission a certificate after public hearing of all parties interested that the exercising of such license, permit, right of franchise is proper and necessary for the public convenience.”-

‘ The plaintiff claims that the true intent of this law wras to prevent a multiplicity of telephone systems, and to confine this service to one well regulated company, and that the defendant without applying to or obtaining permission from the public service commission, is extending its lines and causing infringement into plaintiff’s territory as alleged; that this will damage the value of plaintiff’s property causing irreparable injury-for which it has no remedy at law.

The defendant in its answer admits the general averments' as to both parties being telephone systems, that it has extended its lines from time to time since 1909, and at the time of the granting of the temporary restraining order herein was extending one of its lines to Kingman and a cross line from Oakland towards Harveysiburg to be operated under its plant at New Burlington; that it has demand from numerous persons in that territory for its service. It admits the enactment of the public utilities act and the enactment of Section 54 as set forth in the petition, but claims that the facts stated in the petition do not warrant the application of Section 54 to it; that the defendant’s rights under its charter and its plant were established in 1909, before said act became regulative, and that its proposed extentions over the New Burlington plant are not within the purview of that statute and if said Section 54 be so construed it is contrary to the Constitution of Ohio and void. Wherefore it prays that the petition be dismissed and it be allowed damages.

This in substance briefly states the issue between the parties, ' and the demurrer to the answer which searches the record will now be considered;

As counsel • state we are plowing new ground in Ohio in respect to public utilities. There are no decisions upon the subject in any state. Wisconsin is the leading authority upon these questions, and its statute has been referred to and submitted by counsel. By carefully considering the purposes of these acts, we readily see that the intention of the Legislature was to avoid multiplicity of telephones as well as to give good service at reasonable rates to the people of the state. There is surely nothing in the enactment, and particularly of Section 54 which is unconstitutional as against the inherent rights of the defend- • ant, nor was this in fact strongly insisted upon by defendant’s counsel. The principal contention of defendant’s counsel was that the plant having been established in New Burlington prior to its enactment, the company has full authority of law to extend its lines within the territory granted by its charter, without interference by the public service commission created by the act.

■ There is no doubt in my mind that where two companies had prior to this enactment extended their lines throughout the same territory, that this could aud would not be effective in compelling either company to abandon such territory. ' '

It is admitted by defendant’s counsel that if a new plant were" constructed, for instance in Wilmington, it would be in viola-" tion of • Section 54, but that this plant having been heretofore established1 and in continuous operation over New Burlington; Section 54 does not apply.

A plant of a telephone company is not the same as a plant of. an electric light company or other similar public utility. "A" telephone plant consists of its central office or offices, its wires, ', lines and extentions, and from a central office in New Burlington its plant could be extended indefinitely. The whole intention of' the act, and the proper interpretation of Section 54, seems' without doubt in niy mind to indicate that public service com-' mission has full authority under the statute in regulating any company which has not actually exercised its permits, rights, licenses' or' franchises, by actual extention into the territory authorized by its charter. I am of the opinion that the - answer"' does not'state a good defense in this respect, and that'the averments of the petition cover the facts which would require an ' investigation and authority of the public service commission, and that before the defendant could exercise its franchise in terri- ■ tory already occupied by another telephone company, that it' should "comply with Section 54, by securing from the public' service commission a certificate that the' exercise of its license, '• right permit or franchise is proper and necessary for'the public' convenieee, before it extends its lines. This can readily' be doné and after a full hearing, if any injustice is being done, the public service' commission under this act can readily remedy the same.: It is therefore my duty under this view of the law, which is very ' clear .to me, to sustain the demurrer to the answer which is ■ accordingly "done. ■ Counsel will furnish the .necessary journal' entry; which Judge West will-approve unless there is some'fur-' ther question to- 'be submitted.  