Shafor v. Public Utilities Commission ( 1916 )

Newman, J.

The purpose of this proceeding before the public utilities commission, as stated by counsel, was to have established a direct toll service between plaintiff in error and the other subscribers of The Hamilton Home Telephone Company in Butler county and the subscribers of The Cincinnati & Suburban Bell Telephone Company in Cincinnati and its suburbs, so that a subscriber of The Hamilton Home Telephone Company, through his own instrument in his own home or office or place of business, might call up any subscriber of The Cincinnati & Suburban Bell Telephone Company in Cincinnati or its suburbs, or be called up by him, and hold a conversation.

It is insisted that the commission has power under Section 614-63, General Code, to make the order asked for in the complaint. This section is as follows:

“The commission shall have the power upon complaint, in writing, by any person, or on its own initiative, by order, to require any two or more telephone companies whose lines or wires form a continuous line of communication, or could be made to do so by the construction and maintenance of suitable connections or the joint use of equipment, or the transfer of messages at common points, between different localities which cannot be communicated with or reached by the lines of either company alone, where such service is not already established or provided for, unless public necessity requires additional service, to establish and maintain through lines within the state between two or more such localities. The joint rate or charges for such service shall be just and reasonable and the commission shall have power to establish the same, and declare the portion thereof to which each company affected thereby shall be entitled and the manner in which the same shall be secured and paid. All necessary construction, maintenance and equipment in order to establish such service shall be constructed and maintained in such manner and under such rules, with such division of expense and labor as shall or may be required by the commission.”

There has been filed in this court with the transcript of the journal entries and the original papers a certified transcript of all the evidence adduced upon the hearing before the commission. We have examined this evidence and are of the opinion that there has been a failure on the part of plaintiff in error to show that public necessity requires additional telephone service between the locality in which he resides and the city of Cincinnati. On the contrary we think it clearly appears that The Cincinnati & Suburban Bell Telephone Company is furnishing necessary and adequate service between the locality in which The Hamilton Home Telephone Company is operating and the city of Cincinnati and that public necessity does not require additional service. It also appears that The Cincinnati & Suburban Bell Telephone Company has offered and is able to furnish long-distance service to plaintiff in error and the other subscribers of The Hamilton Home Telephone Company and to residents of the city of Hamilton and the locality in which the two companies are competitors.

But notwithstanding these facts, it is insisted by counsel for plaintiff in error that Section 614-63, supra, confers power upon the commission to act in this matter. They rely upon this language:

“The commission shall have the power * * * to require any two or more telephone companies * * * between different localities which cannot be communicated with or reached by the lines of either company alone, * * * to establish and maintain through lines within the state between two or more such localities.”

They say that inasmuch as the localities in question cannot be reached by the lines of The Hamilton Home Telephone Company the commission must act, although the localities are reached by the lines of The Cincinnati & Suburban Bell Telephone Company. They insist that “either,” as used in this statute, means “both,” and that the two localities are not reached by both companies. It is true that the word “either” has a secondary meaning, viz., “being one and the other of two”: or “both.” But the common and primary meaning of the word is “being one or the other of two,” and the courts will accord to it its common and primary meaning unless the context suggests that it is used in another sense. Not only is there no such suggestion in the context here, but in the use of the word “alone,” “either” unquestionably means “one or the other of two.”

The statute under consideration confers authority upon the commission to require two or more telephone companies to establish and maintain through telephone lines within the state between two or more localities where certain conditions exist. In the exercise of this authority the commission must act pursuant to law. If conditions prerequisite to the making of the order asked for in the present case do not exist, the commission is without power to act. Our holding is that the situation presented here does not call for the exercise of the power conferred by Section 614-63. The localities in question can be communicated with and reached by the lines of The Cincinnati & Suburban Bell Telephone Company, and public necessity not requiring additional service between these two localities a situation does not arise which calls for the exercise of the power conferred upon the commission.

It was alleged in the complaint and was urged before the commission that The Cincinnati & Suburban Bell Telephone Company was supplying other telephone companies within a radius of fifty miles from Cincinnati with long-distance service and was therefore discriminating between the subscribers of those companies and the plaintiff in error and other subscribers of The Hamilton Home Telephone Company. An examination of the record discloses the fact that where The Cincinnati & Suburban Bell Telephone Company is furnishing long-distance service to other companies a situation wholly different from the one in Butler county exists. The commission, we think, correctly disposed of this branch of the case. It used this language:

“The Cincinnati & Suburban Bell Telephone Company is only undertaking to supply this Cincinnati service to localities in which its lines, in connection with the lines of the company supplied, form a continuous and complete line of communication between two localities. The long-distance service to Cincinnati is supplied by it and the local s'ervice stations by the local or connecting company. The Cincinnati & Suburban Bell Telephone Company does not hold itself out to serve nor serve individual subscribers in the locality supplied by the connecting company.

“By extending the Cincinnati service to these various companies, The Cincinnati & Suburban Bell Telephone Company is doing what the commission may, under the provisions of the utility law, order it to do.”

The commission did not err in finding that plaintiff in error was not entitled to the relief prayed for, and its order dismissing the complaint not being unlawful or unreasonable is therefore affirmed.

Order affirmed.

Nichols, C. J., Johnson, Donahue, Jones and Matthias, JJ., concur. Wanamaker, J., dissents.