(dissenting;.
The plain unvarnished facts of this case are that appellee agreed to furnish appellant the telephone service it desired without requiring any deposit until appellee learned that appellant had in his employ one Whit-low Elzner who was indebted to appellee in the sum of several hundred dollars.I
Appellant is a private corporation with authorized capital stock of $50,000.00, with at least $2000.00 in liquid assets, and is not shown to have any debts except for a typewriter.
Mr. Whitlow Elzner does not have any interest in the appellant corporation. He-is only its employe.
Appellee pleaded that its requirement, of a $500.00 deposit from appellant was “a. nondiscriminatory measure which is customary with business situated similarly to the Arvin Harrell Company and operating under circumstances comparable to those involved herein.”
Appellee offered no proof of this allegation nor did it offer any proof that it requires any customer to make a deposit for service.
No one would deny that a public utility,, such as appellee, is subject to the rule prohibiting unreasonable or unjustified discrimination in rates and service. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622.
*699Appellee has no legal right to deny appellant service upon the sole ground that it employs a person who is persona non grata to appellee. This is a collateral matter. Sec. 43, Am.Jur. p. 588; 73 C.J.S. Public Utilities '§ 7, p. 998. In Nueces County Water Improvement District No. 1 v. Spring, 139 Tex. 297, 162 S.W.2d 155, n. w. h., the San Antonio C.C.A., Justice Norvell2 writing, stated, “It is well settled that ⅛ public utility ■corporation can not refuse to render the service which it is authorized by its charter (or by law) to furnish, because of some collateral matter not related to that service.’ ”
In Garner v. City of Aurora, 149 Neb. 295, 30 N.W.2d 917, it was held that a public service corporation cannot refuse to furnish public service because patron is in arrears with it because of some collateral or independent transaction, not strictly connected with particular physical service.
In 47 Tex.Jur.2d, Public Utilities and Service, Sec. 5, p. 397, it is stated, citing Texas Court decisions, that a public utility, unjustifiably refusing service “may properly be compelled by either prohibitory or mandatory injunction, or by mandamus.”
The telephone service desired by appellant is shown to cost $13.50 per month, a $5.00 installation fee and not subject to its being used for long distance calls.
There is no provision in appellee’s franchise or in the ordinances of Austin relative to deposits for service. It is not denied, however, that under Art. 1440, V.T.C.S., a public utility may require deposits to be made.
Since this record shows, without dispute, that appellee is discriminating against appellant in demanding a $500.00 deposit or other security without legal justification, I would reverse and render judgment granting appellant a mandatory writ of injunction or mandamus requiring appellee to furnish appellant the requested service upon it posting a reasonable and proper bond not to exceed $100.00, and paying the customary installation and other fees, and its dissolution conditioned on paying, without delinquency all service charges.
I respectfully dissent.
. The following is taken from appellee’s brief:
“An examination of the facts surrounding the alleged contract breach are as follows:
“1. On November 19, 1963, Arvin Harrell and Whitlow Elzner went to the office of Southwestern Bell Telephone Company and had the following conversation with a telephone employee, Mr. Dunbar:
“ ‘Q That is when Mr. Elzner and you had conference with Mr. Dunbar?
‘“A Well, I didn’t. Mr. Elzner did. I was just along with him at that day. We had been on some other business at that day, and I just went to the telephone company with him. I was just sitting in on the conversation. And Mr. Elz-ner brought up the subject that Mr. Harrell would like to put in a telephone there at that address, [Mr. EIzner’s home] that he was going into business out here, and we were setting up a business, and he would like to have a phone put in there. And I said, “Yes,” to Mr. Dunbar, “that is what I want to do."
“ ‘Q Now, actually, I think I said December 19th; that was November 19, 1963, or about there, was it not?
“ ‘A It was about there.
“ ‘Q All right, sir. And you were told at that time that a deposit for $500 would be required or a personal guarantee in order to do what you wanted to do?
“ ‘A No, I wasn’t told.
“ ‘Q Well, you heard Mr. Dunbar tell Mr. Elzner that?
‘“A Yes.-
“2. On March 24, 1964, Arvin Harrell asked that telephone service be furnished the Arvin Harrell Company by giving it a number to be answered at the Hastings Answering Service. The telephone company agreed to do so and required no deposit because it was the type of service which would probably not be used for long distance calls.
“3. Arvin Harrell talked with Mrs. Hastings, of Hastings Answering Service, on the morning of March 25, 1964, about having service installed at Whitlow EIzner’s homo and Mrs. Hastings called the appellee for narrell and requested in his behalf that Southwestern Bell put a telephone in Elznor’s home.
“4. At this point the telephone company discovered the involvement of Elz-ner and ever since has refused to give the Arvin Harrell Company service without the $500.00 deposit or a guaranty of a responsible person.
“This all occurred after Mr. Elzner had filed for bankruptcy owing the appel-lee $400 or $500.”
. Now an Associate Justice of the Texas Supreme Court.