the railroad company of its property. That arrangement is to be deemed, not unreasonably, a means devised for the convenience of passengers and of the railroad company, and as involving such use by the company of its property as is consistent with the proper performance of its public duties and its ownership of the property in question. If the company, by such use of its property, also derived pecuniary profit for itself, that was a matter of no concern to the defendants, and gave them no ground of complaint.

In the Express Cases, 117 U. S. 1, 24, which involved a general inquiry as to the respective rights of railroad and express companies in respect of the use of railroads for the transportation of express parcels, this court said: "So long as the public are served to their reasonable satisfaction, it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable express accommodations. If this is done, the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. The public require the carriage, but the company may choose its own appropriate means of carriage, always provided they are such as to insure reasonable promptness and security."

In Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co. 139 U. S. 79, 89, one of the questions was as to the validity of a contract between a railroad company and the Pullman Company, whereby the latter was given the exclusive right for fifteen years to furnish drawing-room and sleeping cars to be used by the former, and whereby, also, the railroad company stipulated that during that term it would not contract to give a like privilege to other sleeping car companies. That contract was assailed as one in restraint of trade and as being against public policy. This court said: "The authorities cited in support of this contention have no application to such a contract as the one before us. The defendant was under a duty arising from the public nature of its employment to furnish for the use of passengers on its lines such accommodations as were reasonably required by the existing conditions of passenger traffic. Its duty as a carrier of passengers was to make suitable provisions for their comfort and safety. Instead of furnishing its own drawing-room and sleeping cars, as it might have done, it employed the plaintiff, whose special business was to provide cars of that character, to supply as many as were necessary to meet the requirements of travel. It thus used the instrumentality of another corporation in order that it might properly discharge its duty to the public. So long as the defendant's lines were supplied with the requisite number of drawing-room and sleeping cars, it was a matter

of indifference to the public who owned them. Express Cases, 117 U. S. 1."

The views we have expressed find more or less support in numerous adjudged cases, some of which are cited in the margin. There are cases to the contrary, but, in our opinion, the better view, the one sustained by the clear weight of authority and by sound reason and public policy, is that which we have expressed.3

2 Jencks v. Coleman, 2 Sumn. 221; The D. R. Martin, 11 Blatchf. 233 Com. v. Power, 7 Met. 596; Barney v. Oyster Bay S. B. Co., 67 N. Y. 301 Old Colony R. Co. v. Tripp, 147 Mass. 35; Com. v. Carey, 147 Mass. 40; State ex rel. Sheets v. Union Depot Co., 71 Ohio St. 379; Norfolk & W. R. Co. v. Old Dominion Baggage Co., 99 Va. 111; Fluker v. Georgia Railroad Co., 81 Ga. 461; Griswold v. Webb, 16 R. I. 649; Summitt v. State, 76 Tenn. 413; New York &c. R. R. Co. v. Scovill, 71 Conn. 136; Kates v. Cab Co., 107 Ga. 636; Godbout v. St. Paul Union Depot, 79 Minn. 188; Boston & Albany R. R. Co. v. Brown, 177 Mass. 65; Boston & Maine R. R. Co. v. Sullivan, 177 Mass. 230; New York &c. R. R. Co. v. Bork, 23 R. I. 218; St. Louis Drayage Co. v. Louisville, &c.. R. R. Co., 65 Fed. Rep. 39; Hedding v. Gallagher, 72 N. H. 377.

The

3 See Bruce Wyman, "The Public Duty of the Common Carrier in Relation to Dependant Service," 17 Green Bag 570; Benjamin M. Kline, Scope of the Rule Against Unjust Discrimination by Public Servants," 67 Pennsylvania L. Rev. 109; Notes, 7 Michigan L. Rev. 586, and 23 Columbia L. Rev. 761.

3 Compare the following cases: Barker v. Midland Ry. Co. (1856), 18 C. B. 46, in which plaintiff brought action for damages for exclusion from defendant's premises, when desiring to enter with his omnibus for the purpose of setting down passengers and goods, and for the purpose of taking up passengers who had previously engaged him, other omnibus drivers being allowed to enter for such purposes. One count was based upon the Railway and Canal Traffic Act, 1854, which requires that all reasonable facilities shall be afforded for receiving and delivering traffic, and forbids any undue preference to any particular person or company, or any particular description of traffic in any respect whatever. Judgment was rendered for defendants. CROWDER, J., said: "This is not an action brought by a person wishing to travel by the defendant's railway or to send goods by it; but by a person who carries to and from the railway persons who are desirous of using or who have used the railway. He clearly is not a person who can complain of an obstruction. As to the fourth count, the Railway and Canal Traffic Act, 1854, is confined to the affording facilities to persons using or desiring to use a railway or canal. If any obstruction be afforded in such a case, the party may avail himself of the remedy provided by the act." The above case was quoted and approved in the House of Lords in Perth General Station Committee v. Ross [1897] A. C. 479, 493. In re Marriott (1857), 1 C. B. (N. S.) 499, in which an injunction was sought under the Railway and Canal Traffic Act, 1854, directing the London and South Western Ry. Co. to admit Marriott's omnibus into the station yard for the purpose of delivering and receiving traffic. It appeared that other omnibuses were allowed to enter the yard for such purposes, and that passengers coming and leaving by Marriott's omnibus were greatly inconvenienced. Marriott's omnibus went to certain outlying towns not served by the omnibuses admitted to the station yard. The injunction was granted. CROWDER, J., said: "I also am of the opinion that this rule should be made absolute to the extent stated by the Lord Chief Justice, on the ground that the company, by the course of conduct pursued by them toward the complainant, have subjected him and his passengers to a greater degree of inconvenience than the passengers by Williams's omnibus have been subjected to. For instance, all passengers who come from Teddington and Hampton Wick by the complainant's omnibus are subjected to the inconvenience of being set down at the gate of the station yard, whereas Williams's coming from Kensington and Norbiton are allowed to be driven into the yard and up to the door of the booking-office. That is clearly giving the one set of passengers an undue and unreasonable preference and advantage over the others, and constitutes one of those cases in which the legis lature has by the recent statute authorized us to interfere." By In re

FLY, J., in WESTERN UNION TELEGRAPH CO.
v. SIMMONS.

93 S. W. (Tex. Civ. App.) 686. 1906.1

Telegraph companies are public agencies, chartered for public purposes, and vested with the right of eminent domain in the condemnation of private property for their use. With the grant of these powers and privileges there goes the duty, for a reasonable consideration, to receive and transmit all messages over their lines with promptness, skill and despatch. Joyce, Elec. Law, sec. 14, and authorities noted. The law relating to the receiving and forwarding of telegraphic messages to connecting lines is so nearly analogous to that in regard to common carriers that the established rules of law that determine the liability of the common carrier apply with equal force to telegraph companies. Each can restrict its liability to its own line, but each must receive and forward with diligence to the connecting line, and each will be held liable for its failure or refusal to perform that duty. Smith v. Tel. Co., 84 Tex. 359, 19 S. W. 441, 31 Am. St. Rep. 59.2

ALBANY TELEPHONE CO. v. TERRY.

127 S. W. (Tex. Civ. App.) 567. 1910.

SPEER, J. J. B. Terry, as plaintiff below, filed this suit against the Albany Telephone Company and the Southwestern Telegraph Beadell (1857), 2 C. B. (N. S.) 509, the authority of In re Marriott, is restricted to cases where the exclusion of the omnibus owner or hackman has been injurious to patrons of the road.

Griswold v. Webb (1889), 16 R. I. 649, where a hack driver, having been engaged to call for an incoming passenger, went upon a part of the railroad premises reserved for private carriages, although forbidden to do so, and was sued in trespass. The Court said in part: "The driver is not engaged in his vocation of soliciting patronage, but is waiting to take one with whom a contract has already been made. No question is made that a passenger may have his own carriage enter the premises of the carrier to take him away; but to say that one who is not so fortunate as to own a carriage shall not be allowed to call the one he wants, because it is a hackney carriage, would be a discrimination intolerable in this country. We think the justification [of defendant] is sufficient. It simply secures to a passenger the common privileges of a passenger, and enables the hackney driver to shield himself from an apparent violation of the rules only when he is acting bona fide as a servant of such passenger. This qualification guards the owner from an incursion of unlicensed drivers under a mere pretense of serving passengers, and also confines the right of soliciting business on his premises to those whom he may permit.' Judgment for

defendant.

See Kelly v. Chicago, M. & St. P. R. R. Co. (1895), 93 Ia. 436 (grant of the privilege of conducting a railroad restaurant).

1 Only an extract from the opinion is reprinted.- ED.

2 See Note, 18 Columbia L. Rev. 375.

& Telephone Company, seeking to recover damages for the negligent failure of those companies in respect to three certain telephone calls, tendered to them about August 2, 1907, relative to the serious illness of his brother, Martin Terry, at Clarksville. The trial resulted in a verdict and judgment in plaintiff's favor for $500, and the defendants have appealed.

The undisputed facts, which are decisive of this appeal, show that the first call involved was put in by Mrs. Butler, a sister of appellee, at Clarksville, about 5 o'clock A. M., August 2d, to the Southwestern Telegraph & Telephone Company, whose line extends from Clarksville to Cisco, at which latter place the call was delivered to the Albany Telephone Company, whose line extends from Cisco to Stamford and Rotan. The Albany Telephone Company received the call and made every effort to find appellee at Stamford, to which place the call was addressed; but he was not to be found there, having departed the day before for Rotan. The Southwestern Telegraph & Telephone Company had an arrangement with the Albany Telephone Company whereby the two companies would handle calls for Stamford, but not for Rotan. Appellee in some way learned that he was wanted at Clarksville, and, knowing of his brother's illness, attempted to call up Dr. Dinwiddie at that place from Rotan over the lines of these appellants. The evidence further shows that on about August 6th one W. H. Le Master, at Clarksville, put in a call for appellee at Rotan; but such call was refused, for the reason already given. Neither of the appellants offered to handle calls for the public between the stations of Clarksville and Rotan. Appellee at no time after the first call by his sister, Mrs. Butler, was at Stamford. Under these facts, the trial court should have given the requested instructions for the appellants. There is absolutely nothing in the facts to show that any duty was imposed by law or contract on the appellants, or either of them, to afford the means of telephonic communication between appellee at Rotan and any of the other parties at Clarksville.

The judgment is therefore reversed, and here rendered for appellants.1

1 See Note, 9 Columbia L. Rev. 714.

Cf. State ex rel. Goodwin v. Cadwallader (1909), 172 Ind. 619, where, a switchboard connection having been made by contract between two telephone lines, it was held that the public had been invested with an interest in the through service facilities so that the companies could not withdraw from the contract to the detriment of the public.

In Billings Mut. Tel. Co. v. Rocky Mountain Tel. Co. (1907), 155 Fed. 207, statutory provisions which allowed one telephone company, by means of eminent domain, to compel a connection with, and a user of the lines of another telephone company, were upheld and enforced.

STATE ex rel. THE AMERICAN UNION TELEGRAPH CO. v. THE BELL TELEPHONE CO.

36 Ohio State, 296. 1880.1

THE Columbus Telephone Company is engaged in doing a general telephone business in the city of Columbus. The telephone instruments used by it are the property of the American Bell Telephone Company, a Massachusetts corporation, which company owns the letters patent on such instruments. By the contract between the Columbus Telephone Company and the Bell Telephone Company it is provided that no telegraph company, unless given special permission by the Bell Telephone Company, can be a subscriber to the service of the Columbus Telephone Company, or use the system to collect and deliver messages from and to its customers. The Bell Telephone Company has contracted with the Western Union Telegraph Company to give the latter company the exclusive right to use the system of the Columbus Telephone Company for the purpose of collecting and distributing telegraphic messages. The relators demanded similar service, but were refused, and therefore brought this action for a writ of mandamus, directing the Columbus Telephone Company to furnish the service desired.

MCILVAINE, C. J. . . . Whether any such duty, upon the principles of the common law, is owing from respondents or either of them to the relators 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 need not stop to inquire, as, in our opinion, the whole question between the parties may be determined by the provisions of the 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,

1 Only a summary of the facts is given, and the arguments of counsel, as well as one paragraph of the opinion, are omitted.- ED.