27. 3 saisa ammunication

tan tat permitted by its

a de acreiness of pro

DELS DE M Final basis, whether ollars = pur pocket, real estate, or Teres to milar sanctity hovering stereo of a facent. Its simply a proarm & ad Starting from that as a basis, wher day letermine for himself to what he emment he puts that property into or as fa letter expression, define as the Demers be subjects that property to the cmmer::a. Tansactions: just as in the ware- store of Clinois, decided by the Supreme ured States, mi reported in 94 C. S. 113), it was TH A DĀTARİ muilt a warehouse, and put his proof business, he subjected the property thus te ams which controlled the transactions of comTerre, e a winch was the power of the public, through the greacare, o reguate rates. No man holding property was bound ami a varenouse, or bound to put his property into that parmmar hannei, but the moment he did so, he put it where the egriature could say, "You may charge so much, and no more, for

the transaction of this business." He puts his property into the channels of commerce-as multitudes are doing-into the railroad business, into the express business, and into other channels of commerce. Whenever the property is put into those channels, it is put within the power of the public, speaking through its legislature, or the power of the court enunciating general rules operative upon such transactions, to modify leases, modify licenses, control duties. So, notwithstanding this licenser has given to the licensee the right to establish a telephonic system in the city of St. Louis, with telephonic communication with only certain prescribed telegraph systems, the moment it permitted the establishment of a telephonic system here, that moment it put such telephonic system within the control of the state of Missouri, and the control of the courts, enforcing the obligations of a common carrier.

A telephonic system is simply a system for the transmission of intelligence and news. It is, perhaps, in a limited sense, and yet in a strict sense, a common carrier. It must be equal in its dealings with all. It may not say to the lawyers of St. Louis, "my license is to establish a telephonic system open to the doctors and the merchants, but shutting out you gentlemen of the bar." The moment it establishes a telephonic system here, it is bound to deal equally with all citizens in every department of business; and the moment it opened its telephonic system to one telegraph company, that moment it put itself in a position where it was bound to open its system to any other telegraph company tendering equal pay for equal service.

So, my conclusion is that, notwithstanding the terms of this license, which seem to inhibit it from dealing with or giving its telephonic privileges to any other telegraph company than the Western Union, the moment it established its telephonic system here, that moment it compelled itself to respond to the demands of any telegraph company or any individual in the city tendering to it equal pay for equal privileges.

The application for mandamus will be sustained.

TREAT, J.-This is an application, it must be borne in mind, against the licensee, who has a license only in accordance with the terms thereof, and we are asked to mandamus that licensee to do what he has no authority to do under the terms of his license. I know of no power in a court which can change a contract between

the licenser and the licensee, and give him a contract other than what he has made, either by enlargement or diminution. If this application had been made against the American Bell Telephone Company, which holds the patent,-the patentee,-it would have been a very different question, and the views suggested by my brother judge would then come up for consideration. But how is it that this licensee, who has only a restricted privilege, can by a mandamus of this court be ordered to do what under his contracts he cannot do? Can we make a new contract? Now, so far as the American Bell Telephone Company is concerned, which holds the patent, it reserved for itself the right with respect to telegraphic connections; and it is alleged in this petition that it has granted that to one company. Now, if the American Bell Telephone Company was here, as between it and this party petitioner, the question presented by my brother judge would have arisen, and in that, possibly, we might not have differed at all.

In the noted case in

This matter is not a new one in the courts. Ohio the court proceeded not as in this case, because there were two parties defendant or respondents, to wit: the American Bell Telephone Company, that had all these rights, with which it had not parted; also the local company, and the charter of the state in connection therewith. There is no such case here. A like case to this was reviewed very elaborately by the Connecticut Supreme Court (I think in 49 Conn.),' where precisely the views I am expressing were entertained, and they seemed to me a demonstration, and express much more clearly and forcibly than I can do in this summary manner, the true doctrine arising out of the sanctity of contracts. If this party wishes the American Bell Telephone Company to grant equal privileges to it with another telegraph company, let it pursue it make it do what it is asked-but I cannot see, by any true theory of the law, why this local party is to have its rights enlarged, and its duties correspondingly enlarged, in violation of the contract under which it rests.

There may be many reasons, of course, no judicial notice of them being taken, why this restriction was made, to wit: Here is a telephonic system in St. Louis. Each one of you present here may wish, under the terms stated, to have such telephonic connection. It is stated in the license, which is a contract, that no one of you

1 American Rapid Telegraph Co. v. Connecticut Telephone Co., 49 Conn. 352.

shall use that for the purposes of taking tolls thereon. In other words, if I have a telephonic connection in my house, and I pay whatever the figure is for it, I am not to open a general telephonic system there, and let the whole neighborhood come in and use my telephone, and pay me therefor, and thus destroy the telephone company's income. It is a personal right, restricted to the use of the individual and his immediate needs. When you bring a telegraph company into operation in connection with it, what would happen? At the telegraph stations here probably there are thousands of messages coming in every day. It is receiving for these telegrams a given amount of money, and taking its tolls thereon. Further than that, instead of doing as heretofore, employing its messengers to do this work, we are asked to compel this telephone company to do that messenger work for it, as an individual would do in permitting his telephone to be used 400 to 500 times a day-it may be for general purposes-and the whole telegraphic business of the country poured on this telephonic system and done at a low figure. That, I suppose, was one of the reasons why this restriction was put there.

But suffice it to say, in my judgment there is no authority for courts to compel a man to do what he has no right to do, and force him to violate his contract. He stands on his contract as he has made it, and there end his duties, obligations and rights, and courts cannot cause him to violate it. That is my view of the case. ties must pursue the American Bell Telephone Company if they wish this question to be presented. It cannot arise in this way.

Par

BREWER, J.-I may be pardoned for suggesting, and I do it with great deference, because as you all know I share with all the members of the bar in this district in a profound admiration for my brother TREAT, that there are two things which seem to me to make against his argument very strongly. I agree with him that if this telephonic system had refused a telephonic connection with any telegraph company, that the Baltimore & Ohio Telegraph Company could not insist upon such connection, but when it has established a telephonic connection with one telegraph company, I think, every other telegraph company has equal right; on the same principle that if it established a telephonic connection with one lawyer, it could not refuse telephonic connection with another lawyer; and the further practical question, that while there may be a contract

VOL. XXXIII.—73

between the licenser and the licensee, the licenser is not a citizenan inhabitant of or found within this district. Suppose this petitioner went to Massachusetts, and obtained a decree there binding the licenser; that would not bind the licensee; that would not disturb the contract, so far as the licensee is concerned. Would the court in Massachusetts have entertained a suit seeking to establish a naked legal right, and without practical benefit to any one? The licensee does not live in Massachusetts. The licenser does not live in St. Louis. Practically, of what avail would a decree be against a licenser in Massachusetts? Would it bind the licensee here? Haven't you got, in a last resort-a last analysis for practical results to come right to the licenser, the holder, the proprietor of the telephonic system here?

TREAT, J.-You omit one consideration (and I may say we are not going into a discussion of the question on the bench,) but it so happens that the licenser, by the very terms of his license, is the only party to make connection. He has done it, and the licensee has nothing to do with it. If you compel the licenser, in whom alone is reserved this privilege, to equalize the matter, he does it; it is immaterial whether the licensee agrees with whatever the licenser says shall be done. Hence the licensee wouldn't be a necessary party anywhere.

GENERAL RULE OF EQUALITY AND REASONABLENESS.-The questions under discussion in the foregoing case have already been considered by some courts. In Am. Union Tel. Co. v. Bell Telephone Co., 10 Cent. L. J. 438, the telegraph company applied to the telephone company for an instrument to be placed in its office. The telephone company refused, and a mandamus was asked and granted, compelling it to do so. Judge THAYER said: "The principles of law applicable to railroad companies and to 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 positions 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