ON PETITION FOR REHEARING Before passing upon appellee's petition for a rehearing, we desire to call attention to Rule 29 of the Supreme and Appellate Courts, as amended January 1, 1924. This rule provides, in part, that: *Page 65 "Application for a rehearing of any cause shall be made by petition, separate from the briefs, signed by counsel, filed with the clerk within sixty days from the rendition of the judgment, stating concisely the cause for which the judgment is supposed to be erroneous, which application shall be supported by briefs only, with arguments set out therein, if desired. Eight copies of the brief must be filed at the same time the petition is filed, and one copy of the brief shall be delivered at once by the clerk to each judge."
Under this rule, an application for a rehearing must be made by a petition separate from the briefs filed in support thereof. In addition to the petition, eight copies of the brief in 4-6. support thereof must be filed. While the rule does not require the brief to contain a copy of the petition, a lawyer desirous of aiding the court will set out a copy of the petition in his brief. Not only does the rule require that the brief must be filed as a separate document, but it also makes it obligatory on the party seeking a rehearing to file a brief in support of the petition. A failure to file such brief is ground for striking the petition from file. See Harmon v. Smitch (1927), 86 Ind. App. 527, 157 N.E. 284, 158 N.E. 627.
Appellee insists that the effect of the order of the Public Service Commission is to deprive it of the use of its property and amounts to a taking of its property without requiring compensation therefor to be first fixed and tendered as required by Art. 1, § 21, of the Constitution of this state, § 73 Burns 1926.
In addition to the facts heretofore stated, the record discloses that the Rochester Telephone Company was organized in 1895, and, within a year thereafter, constructed its plant at Rochester and, in connection therewith, extended a telephone line to Akron, where it had *Page 66 also constructed a telephone system. It also extended lines to several other towns where it had local exchanges. Later local companies were organized in the several towns and the plants theretofore installed by the Rochester company were sold to such local companies, the service lines connecting each of such lines with the Rochester plant being retained by the latter company. When the system at Akron was sold to the Akron company, the Rochester company retained the line connecting the two plants. The Akron plant and the Rochester plant are now and at all times have been connected, and since May, 1921, the only way the public could reach Akron or the subscribers of the Akron company could reach subscribers on any other line was over the line owned by the Rochester company, which, for many years, had been and now is connected with the switchboard in appellee's plant at Akron.
Appellee cites Pacific Telephone, etc., Co. v. Eshleman (1913), 166 Cal. 640, 137 P. 1119, in support of the contention that the order of the commission was a taking of its 7. property under the power of eminent domain, and was not an order regulating the business of the two companies. We are not called upon to either approve or disapprove the California case. It is not in point. The telephone companies involved in that case were competitors. Their plants had never been connected. In the instant case, the two companies are not competitors and never have been. The plants of the two companies have at all times been connected, and in a sense dedicated to a public use. The public had been using the plants of both companies and the line connecting their switchboards for more than a quarter of a century. The business over the connecting line had increased so that the one line was not sufficient. An additional line was necessary to provide the public with proper facilities. This can be accomplished without *Page 67 the taking of appellee's property or any part of it for a newuse. All that is necessary is the construction of another line between the two plants and the connection of it with appellee's switchboard, all of which, under the order of the commission, was required to be done at the cost of the Rochester company. The Public Service Commission, in ordering the connection of the additional line, was simply regulating the business of the two systems so as to improve a use theretofore dedicated to the public. The order of which complaint is made was regulatory in character and made under the police power and not under the power of eminent domain. Pioneer Telephone Telegraph Co. v. State (1913), 34 Okla. 554, 134 P. 398; Wisconsin Tel. Co. v.Railroad Commission (1916), 162 Wis. 383, 156 N.W. 614, L.R.A. 1916E 748; Michigan State Telephone Co. v. Michigan RailroadCommission (1916), 161 N.W. (Mich.) 240; Pacific Tel. Tel.Co. v. Wright-Dickinson Hotel Co. (1914), 214 Fed. 666. The Eschleman case was disapproved in the last two cases cited. If the Public Service Commission had attempted to require appellee to construct a new line between two points where it had no line at that time, or to compel it to dedicate its property to a new service, there might be some ground for contending that such an order was beyond the power of the commission. See Southern BellTel. Tel. Co. v. Town of Calhoun (1923), 287 Fed. 381;Atchison, etc., R. Co. v. Railroad Commission (1916),173 Cal. 577, 160 P. 828, 2 A.L.R. 975.
A careful study of the Eschleman case supports the conclusions we have reached. For instance, at pages 677 and 678, the court said: "But, unless we have read the law to no purpose, the vitally essential principle limiting the exercise of the police power and distinguishing it from the exercise of the power of eminent domain, is that private rights in the former case must, for the *Page 68 benefit of society, yield to reasonable regulations controlling the use of property, in the case of public utilities, within theuse to which the property has been dedicated. The law has the power to regulate the use to increase efficiency and prevent abuses, and such regulations, though they involve an expenditure of money or a modification of the use, are regulations which the law-making power may impose by virtue of the very fact that the property has been dedicated to that public use. Therefore, it is that the decisions declare either that such a regulation is not a taking within the constitutional inhibition, or declare that the regulation being legal, the mere fact that the expenditure of money is involved in no sense amounts to a taking."
Appellee is a public service corporation, and is subject to public regulation, and in the absence of constitutional or statutory requirement might not be required to make a 8. physical connection with another company. But there is good authority for the position that, when such a physical connection has been voluntarily made, under a fair and workable arrangement and guaranteed by contract and the continuous line has come to be patronized and established as a great public convenience, such connection shall not, in breach of the agreement, be disconnected by one of the parties. In such cases, the public has an interest in the arrangement and its right must be given due consideration. Clinton-Dunn Telephone Co. v.Carolina Tel. Tel. Co. (1912), 74 S.E. (N.C.) 636.
Rehearing denied.
Dausman, J., absent. *Page 69