*

American Rapid Telegraph Co. v. Connecticut Telephone Co.

And it and its licensees may, within this commonwealth, enjoy the rights given by chapter sixty-four of the General Statutes and acts amendatory thereof, and shall be subject to the liabilities therein imposed; but section ten of said chapter shall only apply to their public lines."

The tenth section of the statute of Massachusetts here referred to is as follows:-"Every company shall receive dispatches from and for other telegraph lines, companies and associations, and from and for any person; and on payment of the usual charges for transmitting dispatches, according to the regulations of the company, shall transmit the same faithfully and impartially."

The plaintiff demurred to the defendant's answer, and the court (Torrance, J.,) held it sufficient and dismissed the plaintiff's application. The plaintiff then brought the case before this court by a motion in error, assigning as error that the court held-1. That the defendant, as a public corporation of the state of Connecticut, was not bound to furnish equal facilities to the entire public without discrimination. 2. That the American Bell Telephone Company, as a public corporation of the state of Massachusetts, was not bound to furnish equal facilities to the entire public without discrimination. 3. That the restriction in the contract of that company with the defendant was not contrary to the public policy of the state of Massachusetts, to the charter of that company, and to the laws of that state. 4. That the restriction was not contrary to the public policy of this state, the charter of the defendant, and the laws of the state.

A. S. Treat and C. Sherwood, for the plaintiff.

1. The defendant is a public corporation of the state, and in duty bound to furnish equal facilities to the entire public without discrimination. It is engaged in a public employment. It advertises itself as ready to serve all who apply. It is a public servant and lives on public patronage. It holds itself out as ready and willing to furnish instruments and wires connected with the exchange to all who

.

American Rapid Telegraph Co. v. Connecticut Telephone Co.

may apply, and for a like compensation to all. In consideration of this public benefit the authorities have given it the right to use the public highways, to erect poles and construct a net-work of wires to constitute an exchange. This right was granted in consideration of the service which it proposed to render the public. For these privileges it owes the public a duty. That duty is to serve the public indifferently. It bears to the public, then, the same relation as does a common carrier, and is governed by the same principles of law applicable to common carriers. "A common carrier is a public carrier. He engages in a public employment, takes upon himself a public duty, and exercises a sort of public office. He is under a legal obligation; others have a corresponding legal right. His duty being public, the correlative right is public. The public right is a common right, and a common right signifies a reasonably equal right." McDuffie v. Portland & Rochester R. R. Co., 52 N. Hamp., 447. The duty of a common carrier to the public is one of law, growing out of the nature of the employment, and not of contract. Redf. on Carriers, 30, 37, 38.

2. If the defendant resembles a common carrier in its treatment of the public, it cannot enter into a contract with another person or corporation whereby it can legally refuse the application of the plaintiff as one of the public. Such a restrictive contract would be void, as against public policy. "Common carriers are bound to carry, indifferently, within the usual range of their business, for a reasonable compensation, all freight offered, and all passengers who may apply. For similar equal services they are entitled to the same compensation. All applying have an equal right to be transported, or to have their freight transported, in the order of their application. They cannot legally give undue and unjust preference or make unequal and extravagant charges. Having the means of transportation, they are liable to an action if they refuse to carry freight or passengers without just ground for such refusal." N. England Express Co. v. Maine Central R. R. Co., 57. Maine, 194, 196. VOL. XLIX.-46.

*

American Rapid Telegraph Co. v. Connecticut Telephone Co.

"The proprietors of a stage coach who hold themselves out as common carriers of passengers, are bound to receive all who require a passage, so long as they have room, and there. is no legal excuse for a refusal. It is not a lawful excuse that they run their coach in connection with another coach which extends the line to a certain place, and have agreed with the proprietors of such other coach not to receive passengers who come from that place on certain days unless they come in his coach." Bennett v. Dutton, 10 N. Hamp., 481. In the following case a railroad company agreed to give exclusive privileges to an express company, and the court said:"The railroad corporation has no right to do this. The power to regulate the transportation on the road does not carry with it the right to exclude any particular individuals, or to grant exclusive privileges to others. Such a power in a railroad corporation might produce evils of a most alarming character. The rights of the people are not subject to any such corporate control. Like the customers of a grist mill, they have a right to be served, all other things equal, in the order of their applications. A regulation to be valid must operate on all alike. If it deprives any persons of the benefits of the road, or grants exclusive privileges to others, it is against law and void. * An express company engaged in the business of transporting small packages has as good a right to the benefits of the railroad as the owners of the packages possessed in person. It is impossible that they can all appear in person to claim their rights, and it is sufficient that they are represented by agents who are intrusted with their goods and have a special property in them." Sanford v. Railroad Co., 24 Penn. St., 381. The same principles of law are approved and strongly illustrated in the case of Munn v. Illinois, 94 U. S. Reps., 113, in which the U. S. Supreme Court holds that the large elevators at Chicago are quasi public institutions and their employment of a public character, and that by reason of their employment they are subject to legislative control in their charges and bound to treat all alike. The same doctrine is laid down in Winona

American Rapid Telegraph Co. v. Connecticut Telephone Co.

&St. Peter R. R. Co. v. Blake, 94 U. S. Reps., 180; N. Jersey Nav. Co. v. Merchants' Bank, 6 How., 382; Vincent v. Chicago & Alton R. R. Co., 49 Ill., 33; Chicago & N. Western R. R. Co. v. The People, 56 id., 365; Chicago & Alton R. R. Co. v. The People, 67 id., 22; People v. Albany & Vermont R. R. Co., 24 N. York, 269; Southern Express Co. v. Iron Mountain R. R. Co., (to appear in 2 McCrary); Texas Express Co. v. Texas & Pacific R. R. Co., 24 Albany Law Journal, 35; State v. Hartford & N. Hav. R. R. Co., 29 Conn., 538.

3. If there can be any doubt of the resemblance between the defendant company and the kinds of common carriers above mentioned, the medium employed being so unlike, there certainly can be none of the resemblance between it and telegraph companies, the medium employed being the same. Both are carriers of intelligence, and both use wires. and the appliances and inventions relating to electricity and magnetism; the difference being that in the one case a person uses the wires and appliances directly; in the other, through certain persons as his agents. But telegraph companies are now regarded as common carriers and governed by the same general rules. 2 Parsons on Cont., 251; MacAndrew v. Electric Telegraph Co., 17 C. Bench, 3; Parks v. Alta Cal. Telegraph Co., 13 Cal., 422. court says: "The rules of law which of telegraph companies are not new. applied to new circumstances. Such companies hold themselves out to the public as engaged in a particular branch of business, in which the interests of the public are deeply concerned. They propose to do a certain service for a given price. There is no difference in the general nature of the legal obligation of the contract between carrying a message along a wire and carrying goods or a package along a route. The physical agency may be different, but the essential nature of the contract is the same." Again, in De Rutte v. N. York &c. Telegraph Co., 1 Daly, 547, the court says:-"The business of transmitting messages by means of the electric telegraph is like that of common carriers, in the nature of a

In the last case the govern the liability They are old rules

American Rapid Telegraph Co. v. Connecticut Telephone Co.

public employment, for those who engage in it do not undertake to transmit messages only for particular persons, but for the public generally." See also Western Union Tel. Co. v. Neill, 24 Albany Law Journal, 409.

4. But the precise questions under discussion in this case have been considered and decided by some of the courts in this country. In Am. Union Telegraph Co. v. Bell Telephone Co., 10 Central Law Jour., 438, the telegraph company had applied, as we have done, to the telephone company for an instrument to be placed in its office. The telephone company refused, as in this case, and the questions arose as here, on a mandamus. Judge THAYER, giving the opinion of the court, said:-"The principles of law applicable to railroad companies and other common carriers unquestionably apply to telegraph and telephone companies. Having established their lines and adopted a uniform mode of serving the public consistent with their chartered powers, they must treat all persons similarly situated with respect to those lines alike, and without unjust discrimination. It is not for them to select whom they will serve, or impose conditions of service on one class of customers that do not apply equally to all persons occupying the same relative position toward the company. * If it erects its main line along a certain street or streets under a power granted in its charter to use public highways for that purpose, and under a charter granting it the power to condemn land for the construction of a telephone line, and if it elects to serve the public by furnishing instruments to residents along such line for private use, and by making connections between such instruments and its main lines; above all, if it holds itself out to the public as prepared to furnish such instruments and make such connections for all who may apply, then I should say that its duty to the public compels it to treat all residents along such line with absolute impartiality. It cannot grant such facilities or render such service to one citizen or corporation and refuse like privileges to his next door neighbor. It follows, from the principles above stated, that in refusing to grant to the relator such facilities