
    The People ex rel. The Postal Cable Telegraph Company v. The Hudson River Telephone Company.
    
      {Supreme Court, Special Term, Albany County,
    
    
      Filed May 1887.)
    
    1. Mandamus—Rights of owners of patent—Duty to the public.
    The relator is engaged in the transmission of messages by telegraph. The defendant in the transmission of human speech by means of the telephone. Both are duly organized under the statutes of this state, and, in addition to the business above mentioned, carry on a general messenger business in the city of Albany The relator demanded of the defendant that one of its telephones be placed in the relator’s office, offering at the same time to pay any sum required for the privilege of having and using such telephone, and promising to comply with all the rules and regulations regulating and controlling all persons, corporations and companies having or using said telephones. The defendant refused to comply with such demand, whereupon the relator moved the court for a peremptory mandamus directing the defendant on payment to it by the relator of its usual charges and compliance with its proper regulations, to place one of its telephones in the relator’s office. Held, that the owner oí a patent had the right to determine whether or not any use should be made of his in vention, and, if any, what such use should be That when however, he determined upon its use, his legal duty to the public required that all persons should in respect to it be treated alike, without injurious discrimination as to rates or conditions.
    2. Same—Peremptory—When granted.
    
      Held, that the relator was entitled to the mandamus applied for, upon , compliance with the defendant’s rules and regulations and payment of its charges.
    3. Same—Duties of telephone company—Need not rent instruments
    FOR COMPETITION IN ITS BUSINESS.
    
      Held, that the defendant was legally bound to transmit over its wires such messages as the relator might desire, upon payment of its usual charges to individuals, but that it was not obliged to allow the relator, upon the payment of the charges usually made to a subscriber, to use its instruments to compete with it in its business.
    4. Mandamus—Telephone company—Unreasonable regulations.
    
      Held, that so much of the defendant’s regulations as provided that the telephone should not be used for calling messengers, except from the defendant’s central office, were unreasonable, and need not be acceded to by the relator.
    5. Same—Stay of proceedings under Code Civ. Pro., § 3089—Applica-
    tion for—When entertained.
    It having been stated, upon the argument of the motion, that a review of the decision was intended Held, that application for a stay under Code Civil Procedure, section 3089, would be entertained.
    
      N. C. Moák and Martin D. Conway,, for relator; D. Cady Herrick, .for def’t.
   Parker, J.

The relator is engaged in the transmission of messages by telegraph. The defendant, in the transmission of human speech, by means of the telephone.

In addition both relator and defendant carry on a general messenger business in the city of Albany, and each are duly managed under and by virtue of statutes of this state.

By the moving papers it appears that the relator demanded of the defendant that one of its telephones be placed in the office of the Postal Telegraph Cable Company, and at the same time offered to pay any sum required for the privilege of having and using such telephone, and further promised to comply with all the rules and regulations, regulating and controlling all persons, corporations and companies having or using such telephone," and that the defendant refused, and still refuses, to comply with such demand.

Thereupon the relator moved the court for a peremptory mandamus directing the defendant, on payment to it, by relator, of its usual charges and compliance with its proper regulations, to place one of its telephones in the relator’s office.

The owner of a patent has the right to determine whether or not any use shall be made of his invention, and if any, what such use shall be. When, however, he determines upon its use, his legal duty to the public requires that all persons shall, in respect to it, be treated alike, without injurious discrimination as to rates or conditions.

A common carrier is bound to carry all articles within the line of its business, for all persons, upon the terms usually imposed. Bank v. Adams Express Co., 1 Flippins (U. S.), 242.

When a railroad company establishes commutation rates for a given locality, it has no right to refuse to sell a commutation ticket to a particular individual of such locality. Atwater v. Delaware and Lackawanna R. R., 4 East. Rep., 186.

A gas company must furnish gas at the same rates to all consumers who apply and are ready and willing to pay therefor Shepard v. Milwaukee, 6 Wis., 547; People ex rel. Kennedy v. Manhattan Gas Co., 45 Barb., 136.

And a telephone company is not permitted to withhold facilities for the transaction of business from one class of citizens which it accords to others. State ex rel. Am. U. Tel Co. v. Bell T. Co., 11 Cent. Law J., 359.

The authorities cited establish the principle that a public servant, as the defendant is, cannot so use the inventions protected by the government as to withhold from one citizen the advantages which it accords to another, and it follows that the relator in this case, on compliance with the usual terms and reasonable regulations of the defendant, is entitled to have mandamus issue, directing the placing of one of its telephones in relator’s office.

The defendant’s papers contain a copy of the agreement which it requires its subscribers to sign before giving to them a telephone for use; such agreement, containing the rules and regulations, which the defendant has determined must form a condition precedent to the placing or using of one of its telephones.

Upon the argument, relator’s counsel contended that a portion thereof was unreasonable, and that to comply therewith would substantially deprive his client from receiving any benefit to its business by the use of the telephone.

The clauses in the agreement to which objection was made were:

First. “ They are not to be used for * * any part of the work of collecting, transmitting or delivering any message in respect of which any toll has been or is to be paid to any party, other than the exchange.”
Second. “Nor for calling messages except from the central office.”

As to the first: Both parties are engaged in the attempt to extend their business to the utmost possible limit. They are alike interested in securing as many customers as possible for their respective lines, and to a considerable extent they are competitors in the same territory for the business of transmitting messages.

Now, while the rule is well settled that a common carrier must serve the public impartially, still it must be borne in mind that its duty is to the public and not to other and competing common carriers. One common carrier cannot demand as a right that it be permitted to use a rival common carrier’s property for the benefit of its own business. Express Cases, 117 U. S., 1; Jencks v. Coleman, 2 Sumner, 221; Barney v. O. B. and H. Steamboat Co., 67 N. Y., 301.

The relator in this case, however, contends that the statute, under which the defendant was incorporated, makes it the duty of the defendant to permit such use of its telephone as the relator’s business requires.

The statute, among other things, provides that “it shall be the duty of the owner, or the association owning any telegraph line, doing business within this state, to receive dispatches from, and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph lines, to transmit the same with impartiality and good faith.”

It is clear that the provisions quoted make it the duty of the defendant to transmit over its wires, any and all messages which the relator may deliver, to have transmitted, on payment of their usual charges to individuals. It seems equally clear that it was not intended to, and does not authorize the relator to transmit its own messages over defendant’s wires, on payment of the merely nominal sum required of its ordinary subscribers. Such a rule would result unjustly to the defendant, as it would enable the relator to enter into competition with defendant in the transmissions of messages over its own wires. With equal propriety it could demand that it be connected with the wires of the Western Union Telegraph Company, on payment of a proper charge, and that then it be permitted to use in its own way, and at its own convenience, the wires and property of its competitor for its business.

Such a construction as the relator contends for is not in accordance with either the letter or spirit of the statute. What the statute commands of corporations doing business in this state is, that they shall send any message presented by another telegraph company for that purpose, on payment of the proper and usual charges. Should defendant refuse at any time to send a message presented by the relator for that purpose, the law affords an adequate remedy for the violation of the statute.

No claim is made that the defendant has ever refused to send messages for the relator, and the only question in respect to the transmission of messages, in controversy here is, can the relator demand the right to transmit them, according to its own pleasure? Neither the rules established by the courts nor the statute referred to, justify such a holding, and in that respect therefore the mies and regulations of the defendant seem to be reasonable and proper.

The objection that so much of defendant’s regulations as prevent the use of the telephone by a subscriber for the purpose of calling messengers, except from the central office, is unreasonable, seems to me to be well taken. The defendant urges that the messenger business as conducted by it is profitable, and for that reason it is desirable that it should be retained as free from competition as possible, and in aid of its position invokes the rule as established by the courts that it owes no such duty to its rival as the permission to use its property for the purposes of a competing business, would constitute.

The rule cannot be questioned, but the application is faulty. The messenger business, although carried on by the same company and at the same offices, is nevertheless a distinct and separate business, and in no wise essential to the conduct of the defendant’s system of transmitting messages by telephone for which purpose it was incorporated. To extend the rule protecting its business from rivals so as to include any other business in which it might see fit to engage could result in great injustice to the public. A livery stable, provision store, meat market and other classes of business could be added in the course of time, and by amending their rules so as to include each new business in the same manner as the messenger service is now áttempted to be protected, a monopoly could be created at the expense of tradesmen and merchants and to the detriment of the public generally.

In Louisville Transfer Co. v. Am. Dist. Tel. Co. (24 Alb. Law Journal, 283-4), both parties were engaged in the carriage and coupe service, and the defendant insisted upon the right to a monopoly in the use of its own telephone methods of communicating and receiving orders for coupe. The court held otherwise and granted an injunction restraining defendant from removing the telephone and from refusing to transmit plaintiff’s business. The decision of the court in that case is applicable to the question here involved and its reasoning is approved.

It follows:

First. That the relator is entitled to a mandamus directing and commanding the defendant to place a telephone in its office on compliance with defendant’s rules and regulations and payment by it of defendant’s proper charges.
Second. That so much of defendant’s regulations as provide that the telephone shall not be used “ for calling messengers except from the central office,” are unreasonable and need not be acceded to by the relator.
Third. As it was stated upon the argument that a review of the decision was entered, an application for a stay under section 2089 will be entertained.

Order to be settled on four days’ notice by either party.  