( Matter of City Ice Fuel Co. v. Public Serv. Comm., supra, p. 542.) We conclude, therefore, that the commission lacks authority to prohibit, either directly or indirectly, a lawful business enterprise from competing with the telephone companies in non-public service areas ( New England Tel. Tel. Co. v. National Merchandising Corp., 335 Mass. 658; Hush-A-Phone Corp. v. United States, 238 F.2d 266, 268, n. 9). The telephone companies, in seeking the regulation, also maintain that these covers could interfere with telephone service. It cannot be disputed that the commission has jurisdiction over such matters, and the scope of our inquiry in this area is to determine whether there is substantial evidence to sustain the commission's determination.
Illinois Bell Telephone Co. v. Miner, 11 Ill. App.2d 44, 136 N.E.2d 1 (1956). New England Tel. Tel. Co. v. National Merchandising Corp., 335 Mass. 658, 141 N.E.2d 702, 63 A.L.R.2d 1085 (1957) is not contra because in that case the tariff did not relate to telephone directories. Since the prohibition (printed on each directory) is a part of every contract between the telephone company and its subscribers, if the defendant furnishes covers without the consent of the telephone company and invites and induces subscribers to use them in violation of their contracts with the telephone company, it is guilty of a multitude of tortious interferences with contractual relationships between the telephone company and its subscribers.
This testimony is a reasonably accurate characterization of the relationship between the telephone company and its subscriber. Cf., New England Tel. Tel. Co. v. National Merchandising Corp., 335 Mass. 658, 141 N.E.2d 702, 63 A.L.R.2d 1085 (1957). At the close of the State's case, Horn, through his counsel, made a motion for judgment of acquittal, essentially contending that the evidence was not sufficient to establish a violation of the statute because it did not show that the telephone and wire in question were property belonging to another.
Both involve the present complainant and both decisions were in its favor. New England Tel. Tel. Co. v. National Merchandising Corp., 335 Mass. 658, 141 N.E.2d 702, 18 PUR 3d 343; National Merchandising Corp. v. Public Service Commission, 5 N.Y.2d 485, 158 N.E.2d 714, 29 PUR 3d 343. See also: Hush-A-Phone Corp. v. United States, 238 F.2d 266.
The earlier cases in the State and Federal courts arising under § 7A were reviewed in Skil Corp. v. Barnet, 337 Mass. 485, 488-491. See New England Tel. Tel. Co. v. National Merchandising Corp. 335 Mass. 658, 665-666. Recent cases are the Great Scott Food Mkt. Inc. case, 348 Mass. 320, 322-325, and the Massachusetts Mut. Life Ins. Co. case, 351 Mass. 283, 290-292.
Healer v. Bloomberg Bros. Inc. 321 Mass. 476, 477-478. Jays Inc. v. Jay-Originals Inc. 321 Mass. 737, 742. New England Tel. Tel. Co. v. National Merchandizing Corp. 335 Mass. 658, 665-666. Great Scott Food Mkt. Inc. v. Sunderland Wonder, Inc. 348 Mass. 320, 323.
See Barett v. Goodwin, 314 Mass. 279, 281. See also New England Tel. Tel. Co. v. National MerchandisingCorp. 335 Mass. 658, 671. 3. Our cases establish that the mere copying and sale of an unpatented product does not furnish to its original manufacturer any basis for injunctive relief or damages. Flagg Mfg. Co. v. Holway, 178 Mass. 83, 90-91.
In the light of the authorities referred to below, it is plain that an assessment in excess of the benefit conferred would not be "reasonable" and, accordingly, we interpret § 7A in a manner which avoids doubts about its constitutionality. See Ferguson v. Commissioner of Corps. Taxn. 316 Mass. 318, 323-324; New England Tel. Tel. Co. v. National Merch. Corp. 335 Mass. 658, 664; Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 701. In the earlier O'Malley case, 340 Mass. 542, 549, it was said that "nothing in" § 7 or § 7A "constitutes statutory authority . . . to require either a permit or a fee, as opposed to a betterment assessment, for a permit to connect with an existing sewer."
Ferguson v. Commissioner of Corps. Taxn. 316 Mass. 318, 322-324. New England Tel. Tel. Co. v. NationalMerchandising Corp. 335 Mass. 658, 664. Worcester County Natl. Bank. v. Commissioner of Banks, 340 Mass. 695, 701.
The opinions already cited give general indication of where the dividing line lies. In the light of all these principles, to avoid serious constitutional doubts (see Ferguson v. Commissioner of Corps. Taxn. 316 Mass. 318, 323-324; New England Tel. Tel. Co. v. National Merchandising Corp. 335 Mass. 658, 664; Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 701), we are constrained to interpret the second sentence of the proposed § 6A sufficiently narrowly to ensure its constitutional validity. We think that this sentence, if enacted, would authorize cities and towns to agree that, for a reasonable period, the project will not be affected by amendment of those provisions of c. 121A (and of the rules, regulations, and standards) which, to furnish a sound basis for proceeding with the necessary investment, are proper and natural for inclusion in a contract for major construction affected with a public interest.