ings, in holding void therefore a stipulation made by them. that they should not be liable for negligence, Mr. Justice Emery said: "Telegraph companies are quasi public servants. They receive from the public valuable franchises. They owe the public care and diligence. Their business intimately concerns the public. Many and various interests are practically dependent upon it. Nearly all interests may be affected by it." 2

2 The following cases, among many others, involve the holding that the telegraph is a public calling:

United States-Primrose v. Western Union Telegraph Co., 154 U. S. 1, 38 L. Ed. 883, 14 Sup. Ct. 1098, B. & W. 525 (1894); Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92, 45 L. Ed. 765 (1901); Western Union Telegraph Co. v. Wyatt, 98 Fed. 335 (1899); United States v. Northern Pac. R. Co. et al., 120 Fed. 546 (1903).

Alabama-Western Union Telegraph Co. v. Henderson, 89 Ala. 510, 7 So. 419, 18 Am. St. Rep. 148 (1890).

Florida-Western Union Telegraph Co. v. Hyer, 22 Fla. 637, 1 So. 129, 1 Am. St. Rep. 222 (1886).

Illinois-People v. Western Union Telegraph Co., 166 Ill. 15, 46 N. E. 731 (1897).

Indiana-Telegraph Co. v. Harding, 103 Ind. 505, 3 N. E. 172 (1885). Kentucky-Camp v. Western Union Telegraph Co., 1 Met. (Ky.) 164. 71 Am. Dec. 461 (1858).

Maine-Ayer v. Western Union Telegraph Co., 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 358 (1887).

Maryland-U. S. Telegraph Co. v. Gildersleeve, 29 Md. 232, 96 Am. Dec. 519 (1868).

Mississippi-Western Union Telegraph Co. v. Liddell, 68 Miss. 1, 8 So. 510 (1891); Western Union Telegraph Co. v. Mississippi Commission, 74 Miss. 80, 21 So. 15 (1896).

Missouri-Reed v. Western Union Telegraph Co., 135 Mo. 661, 37 S. W. 904, 58 Am. St. Rep. 609, 34 L. R. A. 492 (1896).

Nebraska-Kempt v. Western Union Telegraph Co., 28 Neb. 661, 44 N. W. 1064, 26 Am. St. Rep. 363 (1890); Western Union Telegraph Co. v. Call Publishing Co., 44 Neb. 326, 62 N. W. 506, 48 Am. St. Rep. 729, 27 L. R. A. 622 (1895).

North Carolina-Railroad Commissioners v. Western Union Telegraph Co., 113 N. C. 213, 18 S. E. 389 (1893).

Pennsylvania-Western Union Telegraph Co. v. Stevenson, 128 Pa. St. 442, 18 Atl. 441, 15 Am. St. Rep. 687, 5 L. R. A. 515 (1889).

South Dakota-Kirby v. Western Union Telegraph Co., 7 So. Dak. 623, 65 N. W. 37, 30 L. R. A. 612 (1895).

§ 63. Telephone service as an example.

An excellent example of a public duty based largely on the existence of a monopoly by reason of a great established plant is that of the telephone company. In the case of the telephone duplicate services must be provided to make competition possible; for it is not enough to get new takers into a new system, the old ones must be gotten in to satisfy the new ones. From an economic point of view the duplication of plant that is necessary to make competition possible in these public utilities is sheer waste, without compensating advantages. From a business point of view this fact is a most effective deterrent. When one of these public services is established in a neighborhood, it is infrequent that men will be found to invest their money in the construction of another plant. The risk of loss in such a case is too great, for since the market for both old and new is limited to the locality, the struggle must of necessity be so desperate that neither can expect to escape serious injury. Moreover, since most of such public works are permanent in their construction, if the venture fails of success an attempt to remove them would result in almost total loss.

The best discussion of the nature of public calling is to be found in the cases concerning the telephone. These again are most of them common law decisions, so that they disclose the essential tests by which public calling is established. One of the best of these cases, because of its full working out of the problems, is State v. Nebraska Telephone Company.3 In that case the company refused to comply with the relator's request for a telephone, giving various excuses, all of which the court held invalid, and thereupon issued a mandamus ordering the telephone company to fulfill its public duty to the applicant.

Texas-Western Union Telegraph Co. v. Neel, 86 Tex. 368, 25 S. W. 15, 40 Am. St. Rep. 847, B. & W. 479 (1894).

Utah-Brown v. Western Union Telegraph Co., 6 Utah, 236, 21 Pac. 988, B. & W. 475 (1889).

3 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404, B. & W. 142 (1885).

Upon the general issue Mr. Justice Reese said: "While it is true, as claimed by respondent, that it has been organized under the general corporation laws of the State, and in some matters has no higher or greater right than an ordinary corporation, yet it is also true that it has assumed to act in a capacity which is to a great extent public, and has, in the large territory covered by it, undertaken to satisfy a public want or necessity. This public demand can only be supplied by complying with the necessity which has sprung into existence by the introduction of the instrument known as the telephone, and which new demand or necessity in commerce the respondent proposes satisfying. It is also true that the respondent is not possessed of any special privileges under the statutes of the State, and that it is not under quite so heavy obligations, legally, to the public as it would be, had it been favored in that way, but we fail to see just how that fact relieves it. While there is no law giving it a monopoly of the business in the territory covered by its wires, yet it must be apparent to all that the mere fact of this territory being covered by the plant' of respondent, from the very nature and character of its business gives it a monopoly of the business which it transacts. No two companies will try to cover this same territory. The demands of the commerce of the present day makes the telephone a necessity. All the people upon complying with the reasonable rules and demands of the owners of the commodity-patented as it is-should have the benefits of this new commerce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce so necessary in the prosecution of all kinds of business, unless supplied by the respondent."

4 The following decisions, among many others, hold the telephone companies to be in public calling:

§ 64. Sewerage system as an example.

The laying out of a sewerage system involves a great first cost, so great that as a commercial matter the established system would never be duplicated by a competing system even if one were authorized. Cases establishing the public duty of an established sewerage system to serve all that apply are few, since the works are generally constructed by the local governmental authorities, who seldom refuse to give service upon fair terms. There is such a case recently decided, however, Mobile

United States-Chesapeake Telephone Co. v. Manning, 186 U. S. 238, 46 L. Ed. 1144, 22 Sup. Ct. 881 (1901); State v. Bell Telephone Co., 23 Fed. 539 (1885); Delaware v. Delaware Telephone Co., 57 Fed. 633, s. c. 50 Fed. 677 (1891).

Indiana-Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201 (1885); Cen. U. Telephone Co. v. Falley, 118 Ind. 194, 19 N. E. 604, 10 Am. St. Rep. 114 (1888); Central Union Telephone Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035 (1896).

Kentucky Louisville Transfer Co. v. American District Telegraph Co., 1 Ky. L. J. 144; Owensboro Harrison Telephone Co. v. Wisdom, 62 S. W. 529, 23 Ky. Law Rep. 97 (1901).

Maryland Chesapeake Telephone Co. v. Baltimore Telephone Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167, B. & W. 183.

Michigan-Mahan v. Michigan Telephone Co., 132 Mich. 242, 93 N. W. 629 (1903).

Missouri—Louis v. Bell Telephone Co., 96 Mo. 623, 10 S. W. 197, 9 Am. St. Rep. 370 (1888); State v. Knitoch Telephone Co., 93 Mo. App. 349, 67 S. W. 684 (1902).

Nebraska-State v. Neb. Telephone Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404, B. & W. 142 (1885).

New York-People v. Hudson R. Telephone Co., 19 Abb. N. C. (N. Y.) 466 (1887); Matter of Baldwinsville Telephone Co., 24 N. Y. Misc. 221, 53 N. Y. Supp. 574 (1898).

Ohio State v. Bell Telephone Co., 36 Ohio St. 296, 38 Am. Rep. 583 (1880).

South Carolina-State v. Citizens' Telephone Co., 61 So. Car. 83, 39 S E. 257, 85 Am. St. Rep. 870 (1901).

Pennsylvania—Bell Telephone Co. v. Com., 3 Atl. 825 (1886).

Rhode Island-Gardner v. Providence Telephone Co., 23 R. I. 312, 50 Atl. 1014, 55 L. R. A. 115, B. & W. 202 (1901).

Vermont-Commercial Union Telegraph Co. v. New Eng. Telephone Co., 61 Vt. 2411, 17 Atl. 1071, 15 Am. St. Rep. 893 (1888).

v. Bienville Water Supply Company.5 The bill in that case averred an outrageous discrimination practiced by the city, which was conducting both a water supply and a sewerage service, in charging those who had sewerage service alone from the city and those who had both sewerage service and water supply the same. Upon this showing Mr. Justice Haralson spoke sharply: "From the facts of the case, as above recited, if true -as they must be taken on demurrer,-it distinctly appears that the city, while it has the authority to do so, has never, by ordinance, fixed any charge or rate for the use of its sewers, and, indeed, is making no charge to its own customers for the use of the same; that it charges any one using its water alone as much as it charges another for the use of both water and sewer; and against those who use the complainant's water, it charges for sewer service alone as much as it charges its own customers for both water and sewerage, thus making its sewers free to those who use its water, while it imposes on complainant's customers a discriminating and onerous charge for the use of its sewers, as much, as is alleged, as it charges for its own water and sewerage in addition. Whether intended by the city to so operate or not, one can scarcely conceive of a more effective scheme to deprive the complainant of its customers than the one alleged in the bill. If complainant has to furnish its customers with water, and they are required by the city to pay for sewerage the same price it charges its own customers for its water and sewerage, it follows the complainant would have to furnish water practically free or abandon the business; for it would be unreasonable to suppose that any one would use the complainant's water and bear the additional expense imposed for so doing. These sewers of the city are for the public at large, and every one should be permitted to use them without any discrimination in charges against him. The franchise to

5 130 Ala. 379, 30 So. 445 (1901).