McKinley Telephone Co. v. Cumberland Telephone Co.

140 N.W. 38, 152 Wis. 359, 1913 Wisc. LEXIS 77

• Court: Wisconsin Supreme Court
• Decided: February 18, 1913
• Status: Published

Opinions

SiebecKER, J.

Tbe allegations of tbe complaint indicate that tbe plaintiff and tbe defendant made tbis contract with tbe object in view of so conducting tbeir telephone businesses as to avoid duplication of lines for tbe same territory, to restrict tbeir respective fields of operation, to increase tbe extent and efficiency of tbe service, and to avoid tbe increase of ratesi due to a duplication of tbe plants in tbe same territory. It also appears that in making tbis arrangement tbe parties did not thereby gain such control of tbe public service as to enable them to impose exorbitant charges for tbe service on tbeir patrons. The1 contract provides for a specific city rate to business men and merchants, if such rates should be approved by tbe state railroad commission as a reasonable one. Moreover, under tbe law tbe commission bad power to reduce these rates if they should be found excessive. Tbe facts stated also show that tbe plan of combination would probably enhance tbe efficiency of tbe service and that tbe patrons of each company would have tbe advantage of service connection with all tbe patrons of both lines, in place of service connection only with tbe patrons of one of tbe companies. It is therefore clear that so far as these public interests are concerned they are promoted by tbe contract and that there is no ground for objection to its enforcement in tbis regard.

• It however is contended that tbe contract is void because it violates sec. 1791/, Stats., which provides:

“Any corporation organized under tbe laws of tbis state which shall enter into any combination, conspiracy, trust, pool, agreement or contract intended to restrain or prevent competition in tbe supply or price of any article or commodity in general use in tbis state, or constituting a subject of trade or commerce therein, . . . shall, upon proof thereof, in any court of competent jurisdiction, have its charter or authority to do business in this state canceled and annulled.”

It is obvious that the statute is directed against contracts which are violative of the public policy of the state respecting restraints of trade and competition in the supply of any commodity in general use constituting a subject of commerce. The furnishing of telephone service may be classed within the general terms of the statute as the supplying of a commodity constituting a subject of commerce. As heretofore indicated, the contract, in the light of the allegations of the •complaint, does not operate to restrain the supply of this commodity to the public upon established telephone lines, nor does it tend to impose upon them arbitrary and oppressive burdens through the prevention of competition within the field of their operation.

It is argued that the contract prevents the defendant corporation from seeking new fields of operation for the conduct of its business and thus operates to restrain it from supplying telephone service to the public in such new territory. An application of the provisions of the contract to the facts and circumstances as alleged in the complaint clearly shows that the defendant is engaged in a local telephone business in the city of Cumberland and vicinity; that its long-distance service is connected with the Wisconsin Telephone Company; that under the contemplated arrangement it is empowered to furnish telephone service direct to the patrons it retains and to furnish exchange service to all its former patrons who have been transferred to the plaintiff, and also to those who might contemplate securing such service on any of the lines embraced in the contract; and that the defendant is not precluded from making telephone connections with telephone companies other than the plaintiff in territory not embraced within the field of plaintiff’s actual service. The facts and circumstances tbus alleged, witb all tbe reasonable implications, sbow tbat tbe objects of tbe contract are in harmony witb tbe policy of tbe state, embodied in tbe legislative regulations of public utilities, namely, tbat tbe public welfare as regards these enterprises is best promoted through such means as afford tbe highest practical efficiency at tbe lowest cost, and tbat this may best be accomplished by uniting existing facilities, under proper control and regulation, to meet tbe public convenience and necessity, having regard for existing property interests and tbe rights and privileges appertaining thereto. Calumet S. Co. v. Chilton, 148 Wis. 334, 135 N. W. 131.

We are persuaded tbat tbe contract in question is not intended to restrain or prevent competition, nor does it so operate in conducting tbe defendant’s telephone business, in tbe light of tbe provisions of this statute and tbe policy of the state respecting this subject of commerce.

It is contended tbat tbe contract deals witb a transfer of personalty and witb personal services, and hence is not specifically enforceable, and tbat plaintiff has an adequate remedy at law to compensate it for any breach thereof. Tbe defendant has complied witb many of tbe terms and conditions of tbe contract, but refuses to comply witb tbe provision for tbe transfer to plaintiff of its rural lines upon tbe terms agreed on, and refuses to refrain from constructing new rural lines. It is manifest from tbe nature of these contentions tbat tbe plaintiff’s remedy at law, by way of compensation for breach of these conditions, falls short of doing complete justice between tbe parties. To ask compensation for repeated and continuous refusals of tbe defendant to comply witb the specified terms of tbe contract would also be impractical, in view of defendant’s acceptance of tbe benefits of other terms of tbe contract. It is apparent tbat these different agreements constituted a mutual consideration tbe one for the other. We are persuaded that the complaint states a good cause of action for specific performance.

By the Court. — The order appealed from is affirmed.