Opinion
Nos. 34222, 34254 and 34259
Decided November 2, 1955.
Public Utilities Commission — Powers and duties — Appeal — Sufficiency of notice — Revisory jurisdiction — Telephone companies — Operating areas — Responsibility of determining — Exchange boundary maps — Correction — Switching service — Injunction — Contempt of court.
IN PROHIBITION.
APPEAL from the Court of Appeals for Ashland County.
APPEAL from the Public Utilities Commission.
Because of the interrelation of the problems involved in these three causes, they were presented together and will be treated here together.
The Northern Ohio Telephone Company and The Nova Telephone Company, hereinafter respectively called Northern and Nova, are public utilities operating telephone exchanges in Ashland County. On October 16, 1940, the Public Utilities Commission approved an exchange boundary map of the Savannah exchange of the Star Telephone Company, predecessor of Northern, and assigned PUCO Map No. 586 to this boundary map. The then secretary of Nova signed a concurrence on this map. There have been no changes in the map since its approval.
At the time the map was approved, Nova was furnishing switching service to several people along county road No. 11, in the area which is in question in these actions. These persons owned both the plant (lines and poles) and station equipment (telephone receivers and transmitters) and connected their line to the Nova facilities near the Nova corporation line for the purpose of receiving and sending calls from and to other telephones beyond their own line. For this service, they paid Nova a switching fee of about 75 cents a month.
Sometime prior to 1952, a number of persons on one of these switched lines along county road No. 11 had their lines disconnected from the Nova switchboard and requested service from Northern's Savannah exchange. These applicants resided within the claimed exchange area of Northern, as shown on the exchange boundary map. Northern constructed a pole line to serve these applicants. Prior to the placing of lines thereon, Nova instituted an action in the Common Pleas Court of Ashland County (cause No. 34254 herein) to enjoin Northern from serving these subscribers. The injunction was denied by the Common Pleas Court.
On August 18, 1952, Nova filed an application with the Public Utilities Commission, requesting a correction of map No. 586 (cause No. 34259 herein).
While this application was pending before the Public Utilities Commission, Nova appealed on questions of law and fact from the denial of the injunction to the Court of Appeals for Ashland County. In January 1953, the Court of Appeals rendered judgment for the defendant, holding in part as follows:
"The court further finds that the question as to whether the defendant-appellee has a right to furnish telephone service in this area from this time henceforth is a question for the Public Utilities Commission of Ohio to determine.
"It is therefore the judgment of this court that the defendant-appellee be and hereby is restrained from furnishing service to the parties south of the line shown on said map to whom appellants have heretofore furnished switching service unless and until the Public Utilities Commission of Ohio gives them the right so to do." (Emphasis added.)
In cause No. 34259, on November 4, 1953, the Public Utilities Commission denied the application of Nova for a correction of the boundary map. The finding of facts made by the attorney-examiner, which finding was specifically adopted by the commission, reads in part as follows:
"The boundary line between The Nova Telephone Company [and], the predecessor of The Northern Ohio Telephone Company was fixed by map No. 586 approved by the commission October 16, 1940, under approval order No. 58, agreed to by The Nova Telephone Company by C.J. Marquette, secretary. There is no proof that Mr. Marquette did not have authority to sign such approval, but there is testimony that he approved other boundaries than the one in question. The map itself, and the testimony of William M. Barrett, engineer in charge of boundary maps, show that both sides of county road 11, are in the territory of the Savannah exchange of The Northern Ohio Telephone Company."
Thereafter, in cause No. 34254, on January 16, 1954, Northern filed a motion in the Court of Appeals to dissolve the restraining order. This motion was overruled, the entry reading as follows:
"This matter came on to be heard upon the motion of the defendant-appellee to dissolve the injunction heretofore granted to the plaintiffs-appellants herein and was submitted upon the memorandum of counsel.
"The court upon consideration finds that the order of the Public Utilities Commission refusing to correct the map as to the boundaries of the territory of the parties herein can not be the basis for the relief sought in the motion filed herein, and hence that said motion is not well taken.
"Wherefore, the court orders and adjudges that said motion be and it is hereby overruled. The defendant-appellee is given its exceptions."
Northern then filed a motion with the Public Utilities Commission, setting forth the fact of the refusal of the Court of Appeals to dissolve the injunction and requesting the commission to modify its order of November 4, 1953, by issuing an order, responsive to said injunction, that Northern furnish service to applicants. Following a hearing thereon, the commission on June 9, 1954, granted the motion and made the following order:
"The commission coming now to consider the motion of The Northern Ohio Telephone Company to modify the previous order heretofore issued in the above-entitled matter of November 4, 1953, and after full hearing thereon and being otherwise fully advised in the premises, finds:
"(1) That a motion to modify the commission's order of November 4, 1953, was filed by The Northern Ohio Telephone Company on April 21, 1954.
"(2) That on April 23, 1954, the commission issued an order scheduling said motion for hearing and affording all parties of record an opportunity to be heard on May 6, 1954.
"(3) That public hearing was held on the motion of The Northern Ohio Telephone Company to modify on May 6, 1954, before the commission.
"(4) The Northern Ohio Telephone Company's motion requested that the commission modify its order of November 4, 1953, by issuing an order in words and phrases responsive to a restraining order heretofore issued by the Court of Appeals of Ashland County, Ohio, which enjoins The Northern Ohio Telephone Company from furnishing telephone service to certain applicants for telephone service situated within the area of The Northern Ohio Telephone Company until it had been ordered to do so by the commission.
"(5) That the boundary line between The Nova Telephone Company and The Northern Ohio Telephone Company lies 150 ft. to the north of county road 11, as found by this commission in its order of November 4, 1953, which finding is hereby reaffirmed.
"(6) That the applicants for telephone service residing on the north side of county road 11 within 150 ft. thereof are within the operating territory of The Northern Ohio Telephone Company, as well as those on the south side of said county road 11 and those on roads south of county road 11.
"(7) That The Northern Ohio Telephone Company has both the right and the duty to serve all applicants for telephone service within its area including all applicants for telephone service residing on the north side of county road 11 within 150 ft. thereof and including all such applicants on the south side of said county road 11 and those on roads south of county road 11.
"(8) That the Court of Appeals of Ashland County, Ohio, has issued a restraining order which restrains The Northern Ohio Telephone Company from furnishing telephone service to applicants situated within said area until the commission has affirmed the right of The Northern Ohio Telephone Company to do so.
"(9) That the Court of Appeals of Ashland County has refused to dissolve the restraining order of the injunction until this commission acts affirming the right of The Northern Ohio Telephone Company to serve such applicants for telephone service.
"It is, therefore
"Ordered, that the motion to modify the order of this commission issued November 4, 1953, be, and the same hereby is, granted.
"It is, further
"Ordered, that this commission hereby affirms the right and duty of The Northern Ohio Telephone Company to furnish telephone service to applicants within its operating territory as defined by boundary map 586, which territory includes the north side of county road 11, the south side of county road 11 and the roads south from county road 11.
"To which order of the commission The Nova Telephone Company then excepted, here now excepts, and their exceptions are noted of record."
Shortly thereafter, Northern began to furnish telephone service to applicants within the disputed territory.
Nova filed an application for rehearing of the June 9, 1954, order of the Public Utilities Commission, which rehearing was granted. Upon rehearing, the Public Utilities Commission, on October 8, 1954, reissued its previous order.
Following the installation of telephone service, Nova filed an affidavit with the Court of Appeals seeking an order of attachment against Northern, and on November 9, 1954, a hearing was had on the affidavit before the Court of Appeals for Ashland County. The Court of Appeals journalized the following entry:
"This day this matter came on to be heard before this court upon an affidavit reciting that the defendant-appellee has instituted telephone service in an area in which they were enjoined by this court from furnishing telephone service.
"The defendant-appellee having admitted in open court that it is now furnishing telephone service within said area, the court finds that the said defendant-appellee is guilty of contempt of this court in that this court, by an order in this case in March, 1954, specifically held: `It is our judgment that a refusal to change this map is not equivalent to a positive order permitting the defendant to give service to the parties in dispute as contemplated by Section 4905.24 R.C.'
"At that time this court refused, upon application, to dissolve the restraining order herein heretofore made. This order stands unreversed and is the law of the case.
"This language being plain and unmistakable, this court finds that the defendant was bound thereby and did willfully violate said order, and, therefore, is in contempt of this court and is so adjudged.
"It is further ordered, that unless the defendant purge himself of said contempt by discontinuing said telephone service within said area within ten (10) days, it shall then pay to the clerk of this court the sum of twenty-five dollars ($25) per day for each and every day thereafter that it shall continue to furnish said service therein until this injunction is legally dissolved by this or some higher court.
"Appeal bond in this case is fixed in the sum of two thousand five hundred dollars ($2,500) to all of which findings and judgment of this court defendant-appellee excepts."
Cause No. 34254 is now before this court on appeal from the contempt order of the Court of Appeals.
Cause No. 34259 is now before this court on Nova's appeal from the June 9, 1954 (reissued on October 8, 1954), order of the Public Utilities Commission.
Cause No. 34222 is an action in prohibition originally instituted in this court on November 12, 1954, seeking to prohibit the Court of Appeals from proceeding further with the contempt proceeding.
Messrs. Power, Griffith Jones and Messrs. Aigler Aigler, for relator in cause No. 34222 and appellant in cause No. 34254.
Mr. C.W. Chorpening, for respondents in cause No. 34222, appellee in cause No. 34254 and appellant in cause No. 34259.
Mr. C. William O'Neill, attorney general, Mr. Ralph N. Mahaffey and Mr. Everett H. Krueger, Jr., for appellee in cause No. 34259.
The Public Utilities Commission, in cause No. 34259, filed a motion to dismiss the appeal of Nova for the reason that the notice of appeal does not set forth the errors complained of in the order appealed from.
A majority of the court is of the opinion that the motion to dismiss is well taken. However, in view of the differences existing between the parties hereto, and in the hope of putting an end to litigation, it is believed that the wiser course is to consider the appeal as though it were properly perfected.
Although the facts herein are somewhat complicated and the maintenance of three lawsuits simultaneously in three different tribunals is somewhat confusing, the question involved in all three causes is relatively simple: Who has the responsibility for determining the operating area of a public utility?
It is the contention of Nova, in its appeal from the Public Utilities Commission, that the order can not be affirmed because Nova was furnishing service in the disputed area and Northern did not obtain a certificate of necessity under Section 4905.24, Revised Code. The record discloses that no service was furnished by Nova in the disputed area. Nova did not own the plant or station equipment that had been providing telephone service in the disputed area. That was owned by those who received their telephone service therefrom. If, by receiving and sending calls from and to telephones in the disputed area, Nova was rendering telephone service, such service was rendered by Nova not beyond the point where it connected with the line which went into the disputed area and which was owned by others. That point was outside the disputed area. Some weight is given this argument by the Court of Appeals, which, in its opinion on the motion to dissolve the restraining order, said:
"It is our judgment that a refusal to change this map is not equivalent to a positive order permitting the defendant to give service to the parties in dispute as contemplated by Section 4905.24, R.C." (Emphasis added.)
This argument, however, overlooks the fundamental question presented by these actions. The question involved here is not whether Nova was providing adequate service in the area, but whether the disputed area is in the service or operating area of Nova.
Although there is no statute which specifically gives the Public Utilities Commission authority to determine a boundary between the service areas of adjoining telephone companies, its power to do so would appear unquestioned both in reason and in law.
Section 614-3, General Code (Section 4905.04, Revised Code), provides:
"The Public Utilities Commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate `public utilities' and `railroads' as herein defined and provided and to require all public utilities to furnish their products and render all services exacted by the commission, or by law * * *."
Both companies involved herein are public utilities. Each is subject to an order of the Public Utilities Commission to require it to furnish service within its own area and, upon such an order, is bound to serve to the extent of its capacity. Industrial Gas Co. v. Public Utilities Commission, 135 Ohio St. 408, 21 N.E.2d 166. This court has also recognized the authority of the Public Utilities Commission to determine which of two adjoining telephone companies must give service in an area where only one desires to so do. Beaver Telephone Co. v. Public Utilities Commission, 121 Ohio St. 533, 170 N.E. 173; Vandemark v. Public Utilities Commission, 155 Ohio St. 303, 98 N.E.2d 804. By this same reasoning, the commission has also the power to determine which of two companies must give service in an area where both desire to so do.
As between Nova and the predecessor of Northern, a boundary map was approved and filed with the commission. From this map the commission determined that the disputed area lies in that territory agreed to be the operating area of Northern, and made a finding and order to that effect. This court can not say that such a finding and order is unreasonable or contrary to law.
By refusing to accept the commission's determination, the Court of Appeals was exercising revisory jurisdiction. The power to review orders of the Public Utilities Commission is vested exclusively in the Supreme Court. Section 4903.12, Revised Code.
The original restraining order issued by the Court of Appeals enjoined Northern from furnishing service "unless and until the Public Utilities Commission of Ohio gives them the right so to do." The Public Utilities Commission has now acted and has determined that Northern has the right and the duty to furnish service. Upon such a determination, the injunction of the Court of Appeals, by its own order, ceased.
The order of the Public Utilities Commission in cause No. 34259 is affirmed.
The judgment of conviction for contempt in cause No. 34254 is reversed, and final judgment is rendered for Northern.
In the light of the above, the question presented in cause No. 34222 is moot, and the petition is dismissed.
Judgments accordingly.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.