
    The State of Ohio on relation of The American Union Telegraph Company, and The Baltimore and Ohio Railroad Company v. The Bell Telephone Company, The Columbus Telephone Company and The Western Union Telegraph Company.
    1. Where a corporation whose name is composed of several words is sued by a name in which a word in the corporate name is omitted,.such omission or misnomer, unless pleaded in abatement, will be disregarded by the court.
    
      2. By the provisions of chapter 4, title 2, of the revised statutes, each ■ company operating a line or system of telephones in this state is required to receive dispatches from and for telegraph and other companies without discrimination.
    3. A contract between a telephone 'company and the owner of telephone instruments, to the effect, that in the use of such instruments by (he company, discriminations shall be made as between telegraph companies, is void as against public policy, as declared by the statute.
    
      4. The use of patented property, like other species of property, when devoted to public use, is subject to control by state legislation, where the exigencies of the public welfare require it.
    Mandamus.
    Tlie American Union Telegraph Company, a corporation of the .state of New York, is engaged in doing a general telegraph business in the state of Ohio and elsewhere, with an office in the city of Columbus, Ohio. The Baltimore and Ohio Railroad Company, a corporation of the state of Maryland, is engaged in doing a general railroad business in the state of Ohio and elsewhere, with an office in said city. In the management of its business, the railroad company has organized a telegraph department to facilitate the management of its trains and the general conduct of its business, and also an express ■department, to which is confided' the carrying of packages of valuable goods, money, &c. The office in which the management of these departments is controlled is in the same building with the office of the telegraph company, and by an arrangement between the relators, the telegraph department of the railroad company-is placed under the management of the telegraph company.
    The Columbus Telephone Company, one of the respondents, is a corporation of this state, organized on April 15,1880, and is engaged in conducting and managing a system of electric speaking telephones in said city of Columbus, with an ■exchange or central office in the city. The Western Union Telegraph Company, also a respondent herein, is a corporation, ■of the state of New York, engaged in a general telegraph business in the state of Ohio and elsewhere, having an office in said city. The telephone instruments used by the Columbus Telephone Company and its patrons or customers are the property of the American Bell Telephone Company, a corporation of the state of Massachusetts, which company is also the ■owner by assignment of letters patent on said instruments. This corporation is also a respondent in this action under the name of “ The Bell Telephone Company.”
    
      The right of the Columbus Telephone Company to use the instruments and patented invention of tiré American Bell Telephone Company is held under an' agreement in writing between said companies, of which the following is a copy:
    “ This agreement, made this 10th day of April, a.d. 1880, by and between the American Bell Telephone Company, a corporation created under the laws of the state of Massachusetts, lessor and licenser, party of the first part, and the Columbus Telephone Company, a corporation created under the laws of the state of Ohio, lessee and licensee (hereinafter called the-“Exchange”), party of the second part, witnesseth :
    “ (1) "Whereas the lessor owns the letters patent of the United States, granted to Alexander Graham Bell, March 7, 1876, and January 30, 1877, numbered 171, 165, 186, 787, respectively, and owns or has the right to use, and may hereafter own or have the right to use, sundry other inventions, which are or may be embodied in electric speaking telephones, and desires to extend the use of telephones licensed by it, in every manner in which the public may wish to use the same, and for that purpose to provide for the construction and use of the apparatus and lines necessary to be used in connection therewith; and whereas, the lessee desires to obtain the use of telephones, under lease and license, from the party of the first part, to be used with the lines of a telephonic district or exchange system established and owned by it in the territory hereinafter described, under the provisions hereinafter set forth. Nowr it is agreed as follows:
    “ (2) The rights hereby granted shall remain in force until the first day of April, a. d. 1889, unless sooner determined, as hereinafter provided, and shall extend to all exchanges established and owned by the licensee within the present municipal limits of the city of Columbus, Ohio.
    “ (3) For the purpose of this contract, a telephone exchange system means a system, entirely within said territory, in which different circuits are connected with a central or branch office of the exchange, attended by an agent of the Exchange, for the purpose of placing subscribers or other parties, by such circuits, in telephonic communication with such central or branch exchange office, or with each other, either directly, or through the agents of the system. No office or line of an exchange can be connected with any point outside of said territory, nor with any telegraph company’s office or line, except by lines of the licenser, or parties specially designated by it for this purpose, and no telegraph company, unless specially permitted by the licenser, can be a subscriber or use the system to collect and deliver messages from and to its customers.
    “ (4) The licenser, at its general office or factory, will deliver to the exchange as needed, electric speaking telephones, made and to be used under its patents, during the existence of the rights hereby granted and as herein set forth and permitted, and all telephones delivered to the exchange during the continuance hereof shall be deemed to be furnished hereunder, unless otherwise specially designated by the licenser. They will be of such character and pattern, and bear such marks, as the lessor shall from time to time determine ; but the Exchange may choose from among such standard patterns. Each of said telephones shall remain the property of the licenser, and is hereby leased, and the use of it licensed for the purpose herein declared, for the term of one year from the day when rent and royalty begins to accrue on it, as provided in article 8, but the due payment thereof to the licenser, and the due performance of the stipulations hereof during said year by the exchange and those using the telephone under it shall, ipso facto, operate to renew the lease and license for another year, and so on until the expiration or other determination hereof ; in no case, however, beyond the term defined by article 2. The Exchange is hereby licensed to -use said telephones for any purpose, upon circuits exclusively composed of the lines of any such exchange system, and to use them in 'connection with the trunk lines reserved to the licenser by article 9, for the purposes and’ to the extent therein limited, during the term hereby created, upon condition and so long as the rental therefor shall be duly paid to the licenser, and as the provisions' hereof are not violated, but not longer or otherwise; and it may grant said right to its customers by contract, as provided in article 7. The lessor will not license any telephones to be used by others upon an exchange system, within said territory, while the rights of the Exchange hereunder exist; but. the Exchange shall, by general' or special exchanges, supply (so far as it is authorized so to do by this contract) all reasonable demands of the public, and shall be diligent to increase the number of telephones used- on its exchanges. All rights not hereby specifically granted remain to the licenser.
    
      “ (5) The lessor will license, to be used with sirch telephones, the inventions in call bells, switchboards, and other apparatus needed for such telephone lines, which it can so license upon such royalties as it may from time to time establish, not greater than those fixed for others under similar circumstances. The Exchange may enjoy any rights of way and •similar franchises to maintain said lines which the lessor can permit it to use, when and so long as, in the judgment of the lessor, it shall not interfere with the lessor’s enjoyment thereof, and shall pay whatever may be due to third persons, if anything growing out of or in connection’with such use by it. For trunk lines from the Exchange offices to extra-territorial points and to telegraph offices, the lessor may, without further -compensation, enjoy all rights of the licensee to erect and maintain fines, and may use its poles and fixtures, but shall pay a pro rata share of the cost of erecting and maintaining them.
    “ (6) The lessee admits the validity of all patents relating to telephony and telephonic appliances now or hereafter held by the licenser, or under which it may hold licenses exclusive in their character, and the validity of its title thereto, and will’ not dispute the same, or make, use or be interested in any telephones or telephonic fines or business not licensed by the licenser, or its assigns.
    “ (7) The contract between the Exchange and those who are to use telephones under it shall express in such form as the lessor shall from time to time approve, that the telephone is the property of the licenser ; that it is leased and licensed by it as herein expressed ; that all use of it otherwise is an injury to and invasion of the rights of the licenser, as owner thereof, and of the patent rights used therein and thereby, entitling it to all the remedies herein prodded, and to an injunction and other legal redress, in a suit by and in its name and behalf. The Exchange shall require every person using said telephones for communications and messages, sent or to be sent over other telephone or telegraph lines, to provide for payment of tolls thereon, and to make every such message subject to such stipulations, regulations and conditions respecting the liability of such lines, for errors and mistakes, as the licenser may from time to time require, and for that purpose will incorporate into its subscription contracts, and messages blanks, such provisions and contracts, to be agreed to by the subscriber and customer, as the licenser may from time to time approve, and will hold the lessor harmless from all loss and expense consequent upon its failure so to do.
    “ (8) The Exchange shall charge its subscribers such rental and royalty for the telephones as the licenser may fix from time to time, for this and other like exchanges, and also in addition a sum not exorbitant nor unusual, for the use of call bells, batteries, wires, and other appliances, and for services furnished or performed, and may collect both of said sums for a period not exceeding one year in advance. It will make such reports, giving such information regarding the operations of the Exchange and the prices charged, as the licenser may from time to time request. It shall pay to the licenser a rental and royalty at the rate per instrument of the hereinafter named per cent, of the telephone rental and royalty fixed as above (being a discount of the hereinafter named per cent.), to commence on each telephone on the first day of the second calendar month after its shipment by the licenser, to continue until the instrument shall be put into the possession of the licenser, or proved to be destroyed, and to be paid in equal monthly payments in advance at the licenser’s office, on the tenth day of each month, up to the last of the same month. Until otherwise fixed, the rates shall be as follows:
    Battery transmitter, each instrument, . . per year, $10
    Magneto-telephone, “ “ . ■. “ “ $10
    “ Upon each instrument unlawfully detained from the lessor, the Exchange shall pay ten dollars per month Until satisfactory proof of its destruction be furnished shall pay five dollars for each lost and destroyed,- otherwise than by fire or inevitable accident, and shall pay the expense of ordinary repairs; but said payments shall not confer any right to the instrument, nor to its use, nor satisfy any other breach of covenant, nor impair the right of the licenser to obtain the possession of any instrument or lines.
    “(9) The licenser may enter the offices and connect with the exchange system any lines to extra-territorial points and to telegraph offices, in order to establish communication between customers of the Exchange and telegraph companies, or parties reached by said lines, and may there operate said lines with suitable appliances. The Exchange will permit and encourage its customers to use such lines, and by its own operators will receive and transmit such messages to and from its customers and subscribers, or make the proper switchboard or other connections for direct communication as may be requested, and in such manner, not inconsistent with the proper conduct of its office, as the licenser shall direct. But if the ■ licenser is not satisfied with the manner in which it is performed, it may establish its own offices and trunk and radiating lines for this purpose. The. Exchangecwill not, without special leave of the licenser, so far as it can lawfully prevent it, permit the transmission over such connecting lines of general business messages, market quotations, or news for sale or publication, nor any communications in behalf of other parties than those who directly communicate by ffhe telephone by themselves or their servants or agents personally present at the instruments, and no person engaged in the business of transmitting messages for other parties shall be authorized or knowingly allowed by the Exchange to transmit such messages over such lines. The Exchange will turn over and deliver to the licenser and such parties as it may from time to time appoint, exclusively, all messages for electrical transmission to points outside said territory, collected by or coming on the wires, or within the control of said Exchange, where the licenser or such party has wires and will transmit the same, so far as the Exchange can lawfully •control the same, and unless otherwise specially directed by its customers; -but will not solicit such directions, nor receive •any pay tolls for transmission over other lines, unless compellable by law so to do. It shall keep and furnish an account of •each such messages transmitted or received, and of connections made therefor, and shall collect and-on demand pay over to the licenser or its said appointees, respectively, the tolls for transmission beyond the exchange system, according to such rates and rules as each shall establish, and shall exhibit its accounts •and the tickets from which they are made, so far as may be proper, to verify the same. In respect of all the business provided for by this section, the Exchange shall make the following charges and none others. To its own subscriber or customer sending, the same that is made, if any, for an ordinary connection, communication or message; to the lessor, upon, communications passing over its extra-territorial lines, fifteen {15) per cent, of the gross tolls charged for each, but not to •exceed five (5) cents for any one message or communication ■occupying not more than five minutes; and upon messages to be forwarded by telegraph twenty-five per cent, of any commission received from any telegraph company (the rest of such commission to belong tp the lessor); to the receiver nothing; for delivering a telegraphic message to a customer it may use such lines to the office, and may charge the telegraph company such sum as it and such company may agree. The licenser now appoints the Western Union Telegraph Company to perform all telegraphic transmissions under this article.
    (10) If the Exchange shall fail to pay any sums due hereunder for thirty days after the sum shall become payable, or shall violate any other terms or condition of this contract, and ■shall persist in such default, violation, or neglect, or fail to remedy or repair the same for sixty days after written notice thereof from the licenser, or shall become bankrupt or insolvent, the licenser may, if it shall so elect, by a written notice to the Exchange (or those in charge of its principal ■office) terminate all rights granted by the licenser hereunder, and thereupon may, by its agents, sever the circuit upon which any telephone is placed, and take possession of, and remove the telephone, and for that purpose may enter the premises of the Exchange, and all persons claiming under it * or it may collect from any sub-lessee or subscriber all sums then or thereafter due to it, or due to the Exchange for the use of any instruments, circuits and appliances, or under any subscription contract; or it may, so long as it shall see fit, leave in the enjoyment and use of the telephones any subscriber or other person in actual possession, and collect from him such sums as may then and thereafter be, or become due for the use of the telephone and exchange lines, appliances and services, and for that purpose shall be entitled to, and may take possession of all the lines, fixtures, apparatus, appliances and premises of the Exchange used for carrying on its business, and occupy and operate the same in connection with said telephones, and those of additional customers as an Exchange, or connect such lines with an office of its own for that purpose; the licenser shall have the like right upon, and within three months after the termination of the rights of the Exchange hereunder, by efflux of time or otherwise, and may enforce these provisions by an entry, without being guilty of any trespass, or by legal process, including an injunction to prevent any interference with the licenser (and other permitted by it) in the use of said telephones, lines, switchboards and appliances. The property so taken, and which does not belong to the lessor, or revert to it hereunder, may be returned within three months from the taking, in which case it shall pay to the Exchange a reasonable compensation for its use, or the lessor may retain the same as its own property, and shall pay therefor a reasonable price (not exceeding the actual cost) within four months after the taking and shall account to the Exchange for all sums collected which accrued before the licenser became so entitled to possession, deducting all expenses incident thereto, and all that may be due to it. The lessor also reserves all its rights and remedies in law and in equity, under the patent laws or otherwise, including the remedy by injunction against the Exchange or those claiming under it, for the use of any of its patented inventions or instruments not justified by a subsisting license hereunder, or for the violation of any other of its rights. If several exchange systems are established hereunder, these rights and remedies of the lessor shall, in case of any default, apply to all such systems, or to one alone, at its option. The lessor may also use the name of the Exchange to protect its interest and to enforce its rights hereunder, and the Exchange shall execute assignments in accordance herewith.
    “ (11) This contract is personal to the second party herein named, and any assignment or attempt to assign it, or the rights granted, or lines established hereunder by act of the party or operation of law, without the written consent of the licenser will be a violation hereof, and good ground for a cancellation hereof by the licenser; but consent shall be given to an assignment by said party, or by its executors or administrators, to any party, who, in the opinion of the licenser, is fitted and suitable to carry on the business, and who shall, in writing, become bound by the terms hereof. The party of the second part promises that they will keep and observe all ,the stipulations herein contained on its part to be kept and performed. Whenever the licenser grants to others the rights for connecting lines, or any other rights remaining to it, the stipulations hereof relating thereto shall be binding upon, and inure to the benefit of such grantees, and the licenser shall not be responsible for their acts or defaults. If the licenser shall transfer to any party who shall agree to perform the stipulations hereof, its title to the telephones hereby leased, and the patent rights under which they are licensed, and its then existing interest hereunder, it is agreed that the provisions hereof inure to the benefit of, and are binding upon such party in respect of all things done or to be done after such assignment, as if it were named a party thereto, and this said American Bell Telephone Company shall no longer be responsible hereunder.
    “(12) The licensee also agrees that it will not allow any telegraph company to rise, or to have any rights on poles or other structures leased, or put up by, or belonging to, or under the control of said licensee, without the written assent of the American Bell Telephone Company.
    
      
      “ The percentage referred to in article 8 is to be fifty (50) per cent, until March 1, 1881, being a discount of fifty per cent, for that period. And the- licensees shall, after said March. 1, 1881, pay to the licenser the full rate of rental and royalty fixed as above, without discount.”
    Under the right thus reserved, or attempted to be reserved,' by the American Bell Telephone Company, to control all telegraphic messages to be collected or distributed through the system and exchange of the Columbus Telephone Company, said American Bell Telephone Company contracted with the Western Union Telegraph Company to give the latter company the exclusive right to use said telephone system and exchange for the purpose of collecting and distributing telegraphic- messages.
    And the relators being desirous to avail themselves of the advantages and facilities afforded by said telephone system, applied to and requested said Columbus Telephone Company to place one or more telephone instruments in their office to be used in the conduct and management of the business of said relators.
    The complaint of relators is thus stated in their petition for an alternative writ of mandamus, which has been heretofore allowed:
    “ The said relators also offered to pay therefor the usual price paid for the use of such wires and telephones, and ■ have been ready ever since, and are now ready to make such payment, and to, in all respects, comply with the rules and regulations established by said defendants for the control and management of said telephone Exchange, and they are now ready to comply therewith, and said defendants offered to place in said office the necessary wires and a telephone for the use of said express department of said railroad company, but prohibited its use by said telegraph department and said telegraph company, and refused to place therein a telephone and wires to be used by, or for the use of said telegraph company or telegraph department, giving as the reason therefor, that under the contract between said defendants, the said Western Union Telegraph Company was to have the use of. ■said telephone Exchange to the exclusion of all other telegraph companies, and that all messages sent or received over said telephone wires were to be sent and received for the exclusive use and benefit of said Western Union 'Telegraph Company, thus discriminating in favor of the last named company, and against all other telegraph ■companies, especially said American Union Telegraph Company, and unjustly refusing the latter company the.use of said wires.
    
      “ The relators say that such exclusive use of said telephone wires is an unjust discrimination against them, and a violation ■of the duty of said defendants, and of their obligation to ■serve the public indiscriminately, and they are without remedy ■other than the writ of mandamus, commanding said defendants to allow said relators the use of said telephone Exchange and wires, and to connect said offices of said relators therewith, and which writ the said relators now pray may be allowed and issued in accordance with the statute in such case made and provided.”
    The alternative writ commanded tire respondents to put up and maintain a telephone as prayed for by relators, or to show cause for the omission to do so. Having omitted to do as commanded by the writ, the Columbus Telephone Company and the Westera Union Telegraph Company show cause by alleging their contract and agreements with the American Bell ‘Telephone Company as above set forth, the latter' company being in default.
    The cause is now submitted on a motion for a peremptory writ.
    
      ■I. H. Collins, for relators:
    The restrictive part of the contract between the Bell Telephone Company and the Columbus Telephone Company has no validity.
    1. It is against public policy as declared by our statute. §§ 3455-3462, inclusive.
    ■ 2. And so at common law. 2 Redfield on Railw., 163, note 7; 50 Ill. 95; 56 Ill. 377; 49 Ill. 33; 55 Ill. 95; 30 How. (N. Y.) 403 ; 67 Me. 209 ; 62 Me. 209 ; 6 Otto, 1; Potter on-Corporations, §§ 472-476, inclusive; 2 Parsons on Contracts, 746 ; 7 "Wait’s Actions & Defenses, 91; 10 The Reporter, 97.
    3. The contract between the defendants is dated April 10,. 1880, and the certificate of incorporation of the Columbus-Telephone Company dated April 15, 1880. Hence this contract purports to have been executed five days before one of" the parties thereto had an existence.
    4. The Bell Telephone Company has not been licensed by its letters patent to violate our state law, but, having engaged in business here, must obey it. 97 U. S. 501.
    As to the misnomer. The rule is the same as in cases of misnomer of persons. The name of a corporation generally consists of several words, and an omission or alteration of one or more of them, unless it actually misleads to prejudice, is not material, especially if it make no essential difference in the sense. This is the rule in cases of grants to corporations and is the same in pleading. 1 Potter on Corporations, § 12; Kyd on Corporations, 227; 10 N. H. 123; 3 Pickering, 232 ; 10 Mass. 360; 21 Pickering, 490 ; 10 Ohio, 111; 60 Pa. St. 466; Brice’s Ultra Vires (by Green), 3, (note); 13 Johns. 58 18 Howard, 404.
    Matthews, Ramsey c& Matthews, for Columbus Telephone Co. and W. U. Telegraph Co.
   . McIlvaine, C. J.

It has been suggested that jurisdiction has not been obtained over the American Bell Telephone Company. There is no doubt that the relators intended to prosecute the American Bell Telephone Company, but through ignorance of thé trae name have designated it by the name of “ The Bell Telephone Company.” The misnomer, however, is-not fatal to the jurisdiction. It is shown that service of the writ was in fact made upon the proper agent of “ The American Bell Telephone Company.” It is true, advantage of the mistake might have been taken by plea in abatement, but as the company, by its silence, has shown itself to be content with the name by -which it has been sued, the court will regard the ■objection that otherwise .might have been made on the ground ■of misnomer to have been waived. 2 Estee’s Pleadings, 449, note; 2 Cowen, 770 ; 1 Den. 451; Kyd on Corp. 227; Green’s Brice’s Ultra Vires, 3, note ; 13 Johns. 58 ; 1 Potter on Corp. :§ 12.

Whether any such duty, upon the principles of the common law, is owing from -respondents or either of them to the rela“fcors as members of the general public, as is claimed by them, growing out of the nature of the business in which respondents .are engaged and their relations to the public generally, we meed not stop to inquire, as, in onr opinion, the whole question 'between the parties may be determined by the provisions of 4he statute in such case made and provided.

Title 2, chapter 4 of the revised statutes of Ohio, from section 3454 to section 3470, prescribes the powers and duties ■of magnetic telegraph companies, and section 3471 of the same ■chapter provides, the provisions of this chapter shall apply .also to any company organized to construct any line or lines of telephone, and every such company shall have the same powers .and be subject to the same restrictions as are herein prescribed for magnetic telegraph companies.”

Among the powers conferred upon magnetic telegraph companies is the right to occupy public roads and other public grounds, and the power of eminent domain, and among their duties are the following, as prescribed in section 3462,. as .amended April 15, 1880, namely: “Every company, incorporated or unincorporated, operating a telegraph line in this .state, shall receive dispatches from and for other telegraph lines, and from and for any individual; and on payment of its usual charges for transmitting dispatches, as established by the .rules and regulations of the company, shall transmit the same with impartiality and good faith, under a penalty of one hun■dred dollars for each case of neglect or refusal to do so, to be recovered with costs of suit by civil action, in the usual name, and for the benefit of the person or company sending or forwarding, or desiring to send or forward the dispatch.”

This section, wdien construed in connection with section 3471, above quoted, makes it the duty of the Columbus Telephone Company to receive dispatches from and for telegraph lines, by the very words of the statute; but if not, such duty towards the relators and each of them is embraced in the succeeding clause, and from or for any individual.” The word “ individual ” is here used in the sense of person, and embraces-artificial or corporate persons as well as natural. The dispatches so received from or for,” must be transmitted “ with impartiality,” that is, without discrimination, either in respect, to persons or in the time or manner of transmission.

Such being the nature of the duty imposed upon the Columbus Telephone Company by the statute, it cannot shield itself from the performance thereof, by any self-imposed restrictions-contained in the stipulations of a contract with the American Bell Telephone Company, by which the right to use the instruments or license of the latter company was acquired. The-Columbus Telephone Company was bound to acquire from the-American Bell Telephone Company, such rights in its instruments and patent (or to provide itself by other means of all. such facilities), as were necessary to discharge its duties to the-public, as prescribed in the statute; otherwise, it had no right to engage in the business of operating a system of telephones-at all.

We do not mean to say, that as between the Columbus Telephone Company and the American. Bell Telephone Company,, the right to control the receipt and delivery of telegraph messages might not have been reserved to the latter company; but-we do hold, that no such right could be reserved whereby therelators could be deprived of the use of the system of telephones organized and managed by these telephone companies,, either jointly or severally.

And in regard to the American Bell Telephone Company, it is enough to say, after what has already been said in relation to-the Columbus Telephone Company, that it cannot be permitted to operate a line or system of telephones, in this state,, and in the face of the statute, either directly, or through the-agency of licensees, without impartiality, or in other words,, with discriminations against any member of the general public-who is willing and ready to comply with, the conditions imposed upon all other patrons or customers, who are in like circumstances. And all contracts in contravention of the public j>olicy of this state, as declared in chapter 4 of the revised statutes, above referred to, must be declared void and of no effect.

It is claimed that the statute above referred to' cannot control or invalidate the contract in question, because the exclusive right to make, vend, and use these telephone instruments is vested by the assignment of letters patent, under an act of congress, in the American Bell Telephone Company; and that it is not within the power of a state to impair the right so secured. In our opinion, this statute is not the subject of constitutional infirmity. •

While it is true, that letters patent secure a monopoly in the thing patented, so that the right to make, vend, or use the same is vested exclusively in the patentee, his heirs and assigns, for a limited period ; it is not true, that a right to make, vend, or use the same in a manner which would be unlawful except for the letters patent, thereby becomes lawful, under the act of congress,' and beyond the power of the states to regulate or control.

This doctrine is fully discussed and settled in Jordon v. Overseers of Dayton (4 Ohio, 295), and Patterson v. Kentucky (97 U. S. 501). The doctrine of these cases may be stated thus: the right to enjoy a new and useful invention may be secured to the inventor and protected by national authority against all interference; but the use of tangible property which comes into existence by the application of the discovery is not beyond the control of state legislation, simply because the patentee acquires a monopoly in his discovery; “ The sole operation of the statute is to enable him to prevent others from using the products of his labors without his consent; but his own right of using is not enlarged or affected.” The property of an inventor in a patented machine, like all other property, remains subject to the paramount claims of society, and the manner of its use maybe controlled and regulated by state laws when the public welfare requires it.

It appears to ns, as a proposition too plain to admit of argument, that where the beneficial use of patented property, or any species of property, requires public patronage and governmental aid, as, for instance, the use of public ways and the exercise of the right of eminent domain, the state may impose such conditions and regulations as in the judgment of the lawmaking power are necessary to promote the public good.

As respects the Western Union Telegraph Company we are of opinion that no case has been made which will justify a judgment against it; but as to the respondents, the Columbus Telephone Company and the Bell Telephone Company, the writ of mandamus prayed for should be made peremptory.

Judgment accordingly.  