to the latter company, prior to the 23d of May, 1882; and it is under a contract of the date just mentioned that the appellant acquired a right to use the patented devices in the operation of its system of telephonic exchanges. In the agreed statement of facts it is admitted that all the telephones used by the Chesapeake and Potomac Telephone Company a company to which the appellant is an auxiliary organization -and also all the telephones used by the appellant in its Exchange in the city of Baltimore, and elsewhere in the State, are the property of the American Bell Telephone Company. It is alleged by the appellee and admitted by the appellant that the offices of the Western Union Telegraph Company of Baltimore city are connected with the Telephone Exchange of the appellant, and that when a subscriber to the Telephone Exchange wishes to send a message by way of the lines of the Western Union Telegraph Company, the subscriber calls up the Telephone Exchange, and the agent there connects him with the office of the Western Union Telegraph Company, and the subscriber thereupon telephones his message over the lines of the appellant to the Western Union Telegraph office; and a like process is repeated when a message is received by the Western Union Telegraph Company for a subscriber to the Telephone Exchange of the appellant. The appellee is a competing company, in the general telegraph business, with the Western Union Telegraph Company. And being such, it made application to the appellant to have a telephone instrument placed in its receiving-room in Baltimore, and that the same might be connected with the Central Exchange of the appellant, in that city, so that the appellee might be placed upon the same and equal footing with the Western Union Telegraph Company in conducting its business. This request was refused, unless the connection be accepted under certain conditions and restrictions, to be specially embodied in a contract between the two companies, and which conditions and restrictions do not apply in the case of the Western Union Telegraph Company.

It appears that there were conflicting claims existing as to the priority of invention and alleged infringement of patent rights, which were involved in a controversy between the Western Union Telegraph Company and others, and the National Bell Telephone Company, to whose rights the American Bell Telephone Company succeeded; and in order to adjust those conflicting pretensions the contract of the 10th of November, 1879, was entered into by the several parties concerned. The contract is very elaborate, and contains a great variety of provisions. By this agreement, with certain exceptions, the National Bell Telephone Company was to acquire and become owner of all the patents relating to telephones, or patents for the transmission of articulate speech by means of electricity; but while it was expressly stipulated - art. 13, clause 1-that the right to connect district or exchange systems, and the right to use telephones on all lines, should remain exclusively with the National Bell Telephone Company-subsequently the American Bell Telephone Company - and those licensed by it for the purpose, it was in terms provided that "such connecting and other lines are not to be used for the transmission of general business messages, market quotations or news for sale in competition with the business of the

Western Union Telegraph Company, or with that of the Gold and Stock Telegraph Company. And the party of the second part — National Bell Telephone Company so far as it lawfully and properly can prevent it, will not permit the transmission of such general business messages, market quotations or news, for sale or publication, over lines owned by it, or by corporations in which it owns a controlling interest, nor license the use of its telephones or patents for the transmission of such general business messages, market quotations or news, for sale or publication, in competition with such telegraph business of the Western Union Telegraph Company, or that of the Gold and Stock Telegraph Company." The contract of the 23d of May, 1882, under which the appellant derives its right to the use of the patented instruments, was made in subordination to the prior contract of the 10th of November, 1879, and contains a provision to conform with the restrictions and conditions just quoted. In that subordinate contract it is provided that "no telegraph company, unless specially permitted by the licensor, can be a subscriber, or use the system to collect and deliver messages from and to its customers," etc.

These contracts are pleaded and relied on by the appellant as affording a full justification for exacting from the appellee a condition in the contract of subscription to the Exchange, that the latter should observe the restrictions in favor of the Western Union Telegraph Company. The appellant contends that these restrictive conditions in the contracts recited are binding upon it, and that it is not at liberty to furnish to the appellant, being a telegraph company, the instruments applied for and place them in connection with the Exchange, unless it be subject to the restrictive conditions prescribed. And if this be so, the court below was in error in ordering the mandamus to issue. But is the contention of the appellant well founded, in view of the nature of the service that it has undertaken to perform?

The appellant is in the exercise of a public employment, and has assumed the duty of serving the public while in that employment. In this case the appellant is an incorporated body, but it makes no difference whether the party owning and operating a telegraph line or a telephone exchange be a corporation or an individual, the duty imposed in respect to the public is the same. It is the nature of the service undertaken to be performed that creates the duty to the public, and in which the public have an interest, and not simply the body that may be invested with power. The telegraph and telephone are important instruments of commerce, and their service, as such, has become indispensable to the commercial and business public. They are public vehicles of intelligence, and they who own or control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railway company, as a common carrier, can rightfully refuse to perform its duty to the public. They may make and establish all reasonable and proper rules and regulations for the government of their offices and those who deal with them; but they have no power to discriminate, and while offering to serve some refuse to serve others. The law requires them to be impartial, and to serve all alike, upon compliance with their reasonable rules and regulations. This the

statute expressly requires in respect to telegraph lines, and, as we have seen, the same provision is made applicable to telephone lines and exchanges. The law declares that it shall be the duty of any person or corporation owning and operating any telegraph line within this State which, as we have seen, includes a telephone exchange-"to receive dispatches from and for any telegraph lines, associations or companies, and from and for any individual," and to transmit the same in the manner established by the rules and regulations of the office, "and in the order in which they are received, with impartiality and good faith." And such being the plain duty of those owning or operating telegraph lines, or telephone lines, and exchanges within this State, they cannot be exonerated from the performance of that duty by any conditions or restrictions imposed by contract with the owner of the invention. applied in the exercise of the employment. The duty prescribed by law is paramount to that prescribed by contract.

Nor can it be any longer controverted that the legislature of the State has full power to regulate and control, within reasonable limits at least, public employments and property used in connection therewith. As we have said, the telegraph and telephone both being instruments in constant use in conducting the commerce and the affairs, both public and private, of the country, their operation, therefore, in doing a general business is a public employment, and the instruments and appliances used are property devoted to public use, and in which the public have an interest. And, such being the case, the owner of the property thus devoted to public use must submit to have that use and employment regulated by public authority for the common good. This is the principle settled by the case of Munn v. Illinois, 94 Ŭ. S. 113, and which has been followed in subsequent cases.

In the recent

case of Hockett v. State, 105 Ind. 250, where the cases upon this subject are largely collected, it was held, applying the principle of Munn v. Illinois, that it was competent to the State to limit the price which telephone companies might charge for their patented facilities afforded to their customers. And if the price of the service can be lawfully regulated by State authority, there is no perceptible reason for denying such authority for the regulation of the service as to the parties to whom facilities should be furnished.

But, while not controverting the general principle stated, it has been strongly urged in argument for the appellant, that the ownership of the American Bell Telephone Company of all telephone apparatus constructed by that company or its agents, being absolute and exclusive, it had the right, in granting any license to use this apparatus, to limit such use by any conditions which it saw proper to impose upon the licensee. That, in this case, the licensee acquired but a limited right, and that it could impart no greater right to a subscriber to the Exchange than that possessed by the licensee itself.

It is certainly true, as contended by the appellant, that the letterspatent granted to Bell conferred upon him, his heirs and assigns, for a limited time, a monopoly in the invention or discovery patented, and the exclusive right to make, use and vend the tangible property brought into existence by the application of the principle of the discovery or

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invention for which the patents issued. But it does not follow that those letters patent conferred upon him, or his assignees, any such exclusive right to apply or use the tangible property produced in a manner that other property could not be lawfully used. The license to use the telephone instruments in conducting and operating a telephone exchange, at once dedicated or devoted the instruments, to the extent of the requirements of that system or exchange, to public use; and so soon as the office of exchange was opened to the public, the instruments employed became instruments of public service, and, like all other property employed in the service, became subject to public regulation and control. And the fact that those instruments were the product of a patented invention or discovery, and the licensee had agreed to use them in serving the public with certain restrictions, inconsistent with the public regulation, can in no way, nor to any extent, relieve the party in control of the exchange from the full discharge of his duty under the law.

In the case of Patterson v. Kentucky, 97 U. S. 501, it was held that where, by the application of the invention or discovery for which letterspatent had been granted, tangible property had come into existence, its use was, to the same extent as that of any other species of property, subject to State control and regulation. In delivering the opinion of the court in that case, Mr. Justice HARLAN said: "These considerations, gathered from the former decisions of this court, would seem to justify the conclusion that the right which the patentee or his assignee possesses in the property created by the application of a patented discovery must be enjoyed subject to the complete and salutary power with which the States have never parted, of so defining and regulating the sale and use of property within their respective limits as to afford protection to the many against the injurious conduct of the few. The right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself, just as the property in the instrument or plate by which copies of a map are multiplied is distinct from the copyright of the map itself." The same doctrine was reiterated in the case of Webber v. Virginia, 103 U. S. 344, 348.

Now, applying to the case the principles stated, it would seem to be clear that there is nothing in the rights secured by the letters-patent to Bell, and now held by the American Bell Telephone Company, nor in the contracts referred to, that justified the appellant in attempting to impose upon the proposed subscription to the Exchange by the appellee, the restrictive conditions to which we have referred. By insisting upon such restrictive conditions there was an unjust discrimination made against the appellee, and in favor of a competing company. It was to prevent such discrimination that the law was enacted to which reference has been fully made. The question presented in this case, and which we have decided, has been presented and decided by other courts of the country, though not with entire unanimity. In Ohio, under a statute very similar to our own, the question was presented in the case of State Telephone Co., 36 Ohio St. 296.

V.

In that case the supreme court held that under the statute requiring that telegraph companies should receive dispatches from, and for

other telegraph lines, and from and for individuals, and transmit them with impartialty and good faith; a contract between the telephone company and the owner of telephone instruments, providing that the company in the use of the instruments should discriminate as between telegraph companies was void, and, therefore, could furnish no justification for the attempted discrimination.

In Connecticut, however, under a statute somewhat similar to our own, and that of Ohio, a different conclusion was reached in the case of American Rapid Telegraph Co. v. Connecticut Telephone Co., 49 Conn. 352. In that case the court denied the force of the statute, as applied to the owner of the patented instruments, although such instruments were licensed to be used by the local telephone company. That case was strongly pressed in the argument before us, but we have not been able to yield to its authority, though certainly entitled to great respect.

In Pennsylvania, where a statute similar to ours exists, it has been recently held by the supreme court of that State in the case of Bell Telephone Co. v. Commonwealth, ex rel. Baltimore and Ohio Telegraph Co., 7 East. Rep'r, 672, affirming the judgment of the court below, for the reasons assigned by it, that the restrictive or discriminating clause in the contract of the 10th of November, 1879, was simply void as against public right. That the telephone company, holding a license for the use of patented devices, could not discriminate against a telegraph company, seeking to use the telephone system in its business of receiving and delivering telegraphic messages. In the opinion adopted by the supreme court, there are several other well-reasoned opinions referred to, maintaining the same conclusion as to the right of the public, upon principles of the common law, irrespective of statute. Those decisions founded upon the doctrine of Munn v. Illinois, supra, referred to in a previous part of this opinion.

There were some objections taken to the sufficiency of the allegations in the petition for mandamus, and they were ingeniously pressed in argument before this court. But we do not think the objection well founded. It is clear that mandamus is the proper remedy in a case like the present, and we think there is sufficient ground shown for it in the petition.

With the views expressed, this court is of the opinion that the order of the court below, directing the writ of mandamus to issue, should be affirmed, with costs.

EVIDENCE.

A party who purchases a draft upon the authority of a letter from the drawees to the maker, authorizing him to draw upon them for the amount thereof, takes it subject to the conditions, if any, contained in the letter.

The drawees, by letter, authorized the maker of a draft to draw upon them for $500, "as soon as the schooner Russell should complete her cargo of yellow pine flooring.' The maker presented the draft and letter with a bill of lading, which stated that the schooner had been loaded, with yellow pine lumber, to certain