ner conducive to the public benefit, and to be controlled by law."

§ 104. A Public Agency and Subject to Public Regulation.—What the court intend in the foregoing quotation is to lead up to the conclusion that a telephone is a public agency, and that a telephone company is consequently subject to public regulation. "To conduct the business of the telephone," continues OLDS, J., "by public telephone stations, and by sending messengers to notify persons with whom a patron of the company desires to converse in other parts of the city, to compel the person desiring to converse with others to remain at the public telephone station until the persons with whom they desire to converse can be notified, and so arrange their business as to leave it and go to another telephone station and hold a conversation, renders the use of the telephone almost worthless. It is by reason of the fact that business men can have them in their offices and residences, and, without leaving their homes or their places of business, call up another at a great distance with whom they have important business, and converse without the loss of valuable time on the part of either, that the telephone is particularly available as an instrument of commerce. § 105. No Defense that Corporation Uses Agencies Protected by United States Patents.-The mere fact that a corporation conducts its business through

1 Central Union Telephone Co. v. Falley, 118 Ind. 194; s. c., 10 Am. St. Rep. 114, 124. See post, § 137, et seq.

2 Central Union Telephone Co. v. Falley, 118 Ind. 194; s. c., 10 Am. St. Rep. 114. Learned discussions of this subject will be found as follows: By J. McCall, 28 Cent. L. J. 357; by S. S. Merrill, 28 Cent. L. J. 40, n; by Robert Desty, 5 Lawyers' Rep. Ann'd, 161, n.

inventions protected by patents granted by the United States, does not, where its use is a public use, exonerate it from control by State legislation, if the public welfare demands it. Thus, a telephone company, using instruments for the transmission of the sound of the human voice which are thus protected, have been frequently held subject to State regulation.' The distinction has been thus stated: "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 may be controlled and regulated by State laws when the public welfare requires it."2

§ 106. Compelled by Mandamus to Serve the Publie Equally. By analogy to the rule respecting rail

1 State v. Telephone Co., 36 Ohio St. 296; s. c., 38 Am. Rep. 584; Chesapeake, etc. Tel. Co. v. Baltimore, etc. Tel. Co., 66 Md. 399; Commercial Union Tel. Co. v. New England Teleph., etc. Co., 61 Vt. 241; s. C., 17 Atl. Rep. 1071; 6 Rail. & Corp. L. J. 147; 5 L. R. A. 161; 40 Alb. L. J. 186.

" McIlvaine, C. J., in State v. Telephone Co., supra; citing Jordan v. Overseers, 4 Ohio, 295; Patterson v. Kentucky, 97 U. S. 501. So held in Hockett v. State, 105 Ind. 250; s. c., 55 Am. Rep. 201.

way companies,' gas-light companies,' and other corporations charged with the performance of public duties, it is held that a telephone company can be compelled by mandamus to serve the public equally. That is to say, a mandamus will be granted at the suit of A. to compel such a company to render him its services at the same price as it renders them to B. under like circumstances. "Any person or corporation engaged in telephone business, operating telephone lines, furnishing telephonic connections, facilities, and service to business houses, persons and companies, and discriminating against any person or company, can be compelled, by mandate, on petition of such person or company discriminated against, to furnish the petitioner a like service as is furnished to others.'' Such a company can be compelled by mandamus to place and maintain in the office of the relator a telephone and transmitter such as are usually furnished to other subscribers of the company.

1 Vincent v. Chicago, etc. R. Co., 49 Ill. 33; Chicago, etc. R. Co. v. People, 56 Ill. 365; s. c., 8 Am. Rep. 690.

2 People v. Manhattan Gas-Light Co., 45 Barb. (N. Y.) 136.

3 Munn v. Illinois, 94 U. S. 113.

4 State v. Nebraska Telephone Co., 17 Neb. 126; s. c., 52 Am. Rep. 404; Central Union Telephone Company v. Falley, 118 Ind. 194; s. C., 10 Am. St. Rep. 114, 125; 19 N. E. Rep. 604; Louisville Transfer Co. v. American District Telephone Co. (Louisville Chancery Court), 38 Am. Rep. 588, note; Central, etc. Tel. Co. v. State, 118 Ind. 598; Central Union Tel. Co. v. State, 123 Ind. 113; s. c., 24 N. E. Rep. 215. 5 Central Union Telephone Co. v. Falley, supra.

'State v. Nebraska Telephone Company, 17 Neb. 126; s. c., 52 Am. Rep. 404; State v. Telephone Co., 36 Ohio St. 296; s. c., 38 Am. Rep. 583. That such a company is charged with the obligation of receiving and transmitting messages with impartiality and in good faith, see St. Louis v. Bell Telephone Co., 96 Mo. 623. That the remedy by mandamus is an appropriate one, see State v. Hartford, etc. R. Co., 29 Conn. 538; People v. Albany, etc. R. Co., 24 N. Y. 261, and other cases above cited. Unjust discrimination by telephone companies prohibited: Virginia Act Nov. 26, 1888; Acts 1888, No. 124, p. 132.

§ 107. Contract With Parent Company no Defense. -Moreover, where such an obligation is imposed by the statute law-and the rule would equally hold in respect of the same obligation as it exists at common law, a local telephone company, owning or operating telephone lines or exchanges within the State, cannot be exonerated from the performance of the duty imposed by law, by any conditions or restrictions imposed by contract with the owner of the instruments employed and of the invention applied; and such a telephone company, refusing to give to a telegraph company the facilities afforded by it to others, except subject to restrictive conditions imposed by such a contract discriminating in favor of another telegraph company, may be compelled by mandamus to furnish them. The fact that a telephone is a patented instrument, and protected by letters patent granted to the assignor of the parent company, constitutes no defense, since the immunity conferred by the patent cannot operate to exclude any portion of the public from the benefit of it.'

Instance of a

§ 108. Pleading in Such Actions: Responsive Answer.-A petition for a mandamus to compel respondent to furnish telephone service at the usual charge, alleged a tender of the rent charged to others whose places of business were as far from respondent's office as that of relator's, the refusal of the tender and a demand for higher rent. An answer denying that the sum stated was the usual rent for the service required, and averring

1 Chesapeake, etc. Telephone Co. v. Baltimore, etc. Tel. Co., 66 Md. 399; Commercial Union Tel. Co. v. New England Telephone, etc. Co., 61 Vt. 241; s. c., 17 Atl. Rep. 1071.

that, for the price usually charged to others at a like distance as relator's from the central office, respondent was willing and ready to furnish the required apparatus, without ambiguity or evasion, responded to and denied the allegation of the petition.'

§ 109. Compelled to Furnish Equal Facilities to Telegraph Companies.-Moreover, such a company can be compelled by mandamus to furnish to one telegraph company the same facilities for the conduct of its business which it furnishes to another telegraph company, and a contract by which it undertakes to confer exclusive privileges in this respect upon a certain telegraph company, is against public policy and void."

§ 110. Illustration. Thus, the American Bell Telephone Company entered into a contract with the Columbus Telephone Company, of Ohio, granting to the latter the use of its instruments, but providing that the Western Union Telegraph Company should perform all telegraphic transmissions in connection with such use. The American Union Telegraph Company, and the Baltimore & Ohio Railroad Company, which was using the telegraph facilities furnished by the American Union Company, were allowed a mandamus to compel the Columbus Tele

1 Central District, etc. Telephone Co. v. Com., 114 Pa. St. 592; s. c., 7 Atl. Rep. 926; 6 Cent. Rep. 151; 11 East. Rep. 645.

2 State v. Telephone Co., 36 Ohio St. 296; s. c., 38 Am. Rep. 583; Chesapeake, etc. Telephone Co. v. Baltimore, etc. Tel. Co., 66 Md. 399; s. c., 23 Reporter, 469; 7 Atl. Rep. 809; 6 Cent. Rep. 472; 9 East. Rep. 717; 35 Alb. L. J. 271; Commercial Union Tel. Co. v. New England Telephone, etc. Co., 61 Vt. 241; s. C., 6 Rail. & Corp. L. J. 147; 5 L. R.A. 161; 40 Alb. L. J. 186; 17 Atl. Rep. 1071. So held by Judge Thayer of the St. Louis Circuit Court in State ex rel. v. Bell Telephone Co., 44 Am. Rep. 241, note.