DELAWARE &: A. TELEGRAPH &: TELEP. CO. t1. STATE OF DELAWARE.

67![

ilbjection that the complainant had an adequate remedy at law was not made until the hearing in the appellate tribunal, that the latter could exercise no discretion in, the disposition of such objection; and reference was made to 1 Daniell, Ch. Pro (4th Amer. Ed.) 555: Wylie V. Ooxe, 15 How. 415, 420; Oelrichs v. Spain, 15 WaIl. 211; and Lewis V. Oocks, 23 Wall. 466. To the same effect are Kilbourn V. Sunde1'land, 130 U. S. 505, 514, 9 Sup. Ct. 594: Brown V. Iron 00., 134 U. S. 530, 535, 536, 10 Sup. Ct. Rep. 604; and Allen V. Oaf' 00., 139 U. S. 658, 662, 11 Sup. Ct. Rep. 682." Answering an objection of this kind made for the first time in the supreme court, Chief Justice FuLLER, speaking for the court, said: "Under the circumstances of this case, it comes altogether too late, eveq though, if taken in limine, it might have been worthy of attention." R81/1lU v. Du,mont, 130 U. S. 354, 395, 9 Sup. Ct. Rep. 486. . We 'think the facts alleged in the bill make the case one of equitable cognizance, but, if we entertained doubts of this point, we would, be:cause of the fact that the objection was not made in the court below, resolve them in favor of the jurisdiction. Decree affirmed.

DELAWARE

&: A.

TELEGRAPH

WARE &:

rel.

& TELEPHONE Co. ".

Th1n'd Circu4t.

STATE OP

POSTAL TELEGRAPU,CABLE

Co.

DJl:LA,-

(C1n'cuit Cowrtoj

April 21, 1892.)

No. & L

TELEPHONE COMPANIES-COMMON CARRIERS-DUTY TO FURNISH EQUAL

Telephone companies are subject to the rules governing cemmon carriers, :and are bound to furnish equal facilities to all persons or corporations belonging to the olasses which they undertake to serve. .

lL

SAME-USE 011' PATENTED INSTRUMENTS.

a.

They are not exempt from this obligation by the fact that the instruments by which their business is carried on are patented; for while a patentee has a perfect title to the patented, and its use, and is not bound to apply it to a publio use; yet when he does so he is bound by the rules governing such use.
011' TELEGRAPHIC MESSAGES.

A Delaware telephone company, which furnishes facilities to the Western Union Telegraph Company for the transmission of telegraphic messages, 'cannot be excused from furnishing like facilities to other telegraph cempanies because its license to use the telephones is expressly subject to an exclusivillicense in favor of the Western Union Company for the transmission of telegraphic messages; for such exclusive license creates a monopoly, and is void under the Delaware law.

Error to the Circuit Court of the United States for the District of Delaware. Petition by the Postal Telegraph-Cable Company for a writ of manda'Vlusto compel the Delaware & Atlantic Telegraph & Telephone Company to place a telephone transmitter and receiver in the office of relator on the same terms as are given to other subscribers. The petition was inally brought in the superior court of the state of Delaware, for New Castle county, and was removed therefrom to the court below, which awarded the writ as prayed. See 47 Fed. Rep. 633. Respondent brings error. Affirmed.

1»1$

.,J

'f'.'

nJ)JUU.L REPORTER, vol So.

" ,ClIuJrIM,L. Buckingham and EdWardG. Bradford" for' plaintiff in er,"
l,

J'd"'" .

.),'

I, · ·

.

Bates, for '.rudge, and 13UTLlriR,

District

BUTUlR, District Judge. There is no controversy about the facts of this ·. The relawr, Qwnsand operates a telegraph system with lines C,9\lntry. having its principal office. in the city The respondent owns and operates a telephone exchange: in with the places of business and residences of subscribers, towhom',telepbonic facilities are furnished. One of the subscribers enjoying such facilities is the Western Union Telegraph Compltrty.. The relator, desiring similar facilities, on the 20th of November, 1889, ,applied to the respondent for connection with its exchange, and trre Il.pplication was refused. The proofs show that up to November 10, 1879, the National Bell Telephone COplpany and the Western Union Telegraph Company were owners of rival telephone patents, about which they had been engaged in litigatioft. At that date they entered into a contract by virtue of which the former company became owner of the patents previously held by t4e latter, and the latter company acquired . ' exclusive license to Use the telephone for transmitting graphic messages under all the patents· for a term of 17 years. Subsequently the patents were assigned, subject to this license, to the American Bell Tel{lphoneCompany. Alllioenses, including the respondent's, subsequently granted under the pllltents have been made subject to that of Company. It is no longer open to <luestioIl,that telephone and telegraph companies the rules governing common carriers and others engaged in like public employment. This has been so frequently decided that tbepoint must as settled. While it has not been directly before the supreme of the United States, cases in which it has been so determined are citedapptovingly by that court in Budd v. New York, 143·U. S. 517,12 Sup. Ct. Rep. 468. While such companies are not required to extend their facilities beyond such reasonable limits as they prescribe f'Qr themselves, they cannot discriminate between' individuals of classes which thev undertake to serve. As common carriers of merchandise may prescribe the points between which they will carry and the,desqription 9f goods they will accept, so, doubtless, may carriers of messages limit their business and obligations. If, therefore, the respondent had confi[led the use of its telephonic facilities to the car· riage of personal messages for indivi\luals, excluding those of telegraph c6mpanies and others who forward for hire, the relator would, probably,have no just ground of cOl;nplaint. As we have seen, however, it did tiot so limit its business, 1?ut carried telegraphic messages, . as well as The respondent cqntends. however, that this was not its voluntary act; thatthe Western Union Telegraph Company had acquired rights superior to its own, and that it could not, therefore, ex·

DELAWARE &: A. TELEGRAPH &: TELEP. CO.t/.STATE OF DELAWARE.

679

elude this company trom the use of its facilities. This position cannot be sustained. The admission of the Western Union Telegraph Company to its system was the respondent's voluntary act. Such admission could only be obtained by its express consent. To say that its license required such admission does not help the respondent. It voluntarily accepted the 'license and assented to its terms. Nor does it help the respondent to say that the license could not be obtained on other terms. If not, it could have been declined. Had it been, and the business avoided, the responsibilities which attend it would also have been avoided'. Accepting the license, however, as the respondent did, and engaging in the carriAge of messages, it cannot escape the public duties which attend the employment. It must carry for all persons belonging to the classes it undertakes to accommodate. Its alleged responsibility to the licensor for so carrying im pltrtially affords no excuse. The responsibility was improperly assumed, if it exists. But it does not exist. The object of the stipulation out of which it is supposed to arise, as well as that of the contract in which it originated, between the Western Union Telegraph Company and the National Bell 'l'elephone Company, was to accomplish a result which the law forbids. In other words it was to effect precisely what has occurred,-the establishment of a system of telephone lines and exchanges to carry telegraphic messages, ItS well as others, which should be so conducted as to confer a monopoly on one telegraph company. Had ,the owner of the patents come to Delaware and to do what lias been done, it can scarcely be questioned that its act would have been unlawful. And yet th.is is substantially what has occurred. The owner has effected it through the instrumentality of a license. The respondent has simply done what the owner authorized and required. It is urged, however, that the Western Union Telegraph Company is not a mere licensee of the National Bell Telephone Company, but something more; that prior to its contract with that company it was the exclusive owner of certain patents under which it might have applied the telephone to its own exclusive use in carrying telegraphic messages; that the effect of its contract was to leave its right to do this unimpaired; and that its subsequent arrangement with the respondent for carrying its messages is simply the exercise of this right, of which no one can justly complain. This statement is defective in several particulars. First, it is not true that the Western Union Telegraph Company was originally the owner of patents which enabled it to apply the telephone to its use. Its patents, as conceded on the argument, were mainly. if not exclusively, for improvements on the Bell invention, which could not be used without license from the National Bell Telephone Company. Second, it parted absolutely with these patents and took a license,not under them alone, but also under the former patents of the National Bell Telephone Company. It is therefore a licensee and nothing more. But this fact that it is simply a licensee is not of essential importance. The difficulty encountered does not arise out of it, but out of the circumstance that the Western ·Union Telegraph Company did not employ its rights in the

680

, .'. '

FEDERAl. R]1PORTll:R,

50.

above. ind,iqated.. Had it done so, and thus kept its Interest and. business distinct and separate· from that of subsequent .licensees by establishing its own system of lines an.d exchanges and confining such subsequent licensees to the transmission of individual messages, this controversy might not, and doubtless would not, have arisen. Instead, bowever,-andno doubt to avoid the expense attending it which would possibly have rendered the scheme impracticable -the Western Union Telegraph Company sought through the means devised and to secure an advantage over other similar companies, by .a monopoly in the systems and business of such licensees. In .other words, it contracted with these licensees to carry its messages to the exclusion of all similar messages of others. This, as we ha.ve seen, the licensees could not lawfully dOj alld consequently, as before stated, the contracts by which it was sought to be accomplished are void. ,Therespondent supposes importance is attributable to the fact that the telephone is protected by patent, and cites American Rapid Tel. Co. v. Tel. <»., 49 Conn. 352,372, in which it is said: "TbeplaintUf insists that the defendant has offered its services to the public aaacommoncarrierof articulate speech; that it has thereby made itself the servant of the public and has subjected itself to the operation of the generalla'\\' which a)lsuch servants t.o serve applicants impartially, ragar(iJess,of the limitations placed upon its use of t.he instruments. But the property of the American Bell Telephone Company in its patents is absolute alJ.dexclusive; it can rent or sell it in whole or in part; it can refuse to make 01' use,or to allow anyone else to make or use, the telephone described in it; orit can make and sell one and no more, and put such restrictions as the time, place. and manner of using thatjand it was the priVilege of the Connecticut Telephone Company to purchase from it even the gIool!t.limited right to use Que or more of its instruments, and it is not within the power of the court either to enlarge or di minish the purchase."

telephone as a means of conveyance is exempt from the operation of the rules which governcomtnon carrierSllnd others engaged in like public llmployment-we cannot adopt. Where one engages in such public business it is of no consequence whether the means or instruments whereby it is conducted are patented or not. It is the busine88 that is regulated. A. patent secures title to the thing patented and its use, just as the law secures title to other descriptions of property. The owner need apply bis property of. either descdption to such public employment, but if he does, the employment itself 'will be subject to the rules which .the law has prescribed. for its government, without respect to the meana pr instrument by which it is conducted. We do not regard the &preas Cases, 117 U. S. 1, 6 Sup. Ct. ,Rep. 542, 628, cited by the respondent, as applicable here. On· the facts they are distinguishable from this. case; and the exce}>-' Hon which .. theyestahlisb to the general rules governing common carriers:, ianot.. likely to 1:>e enlarged. The. hiatory of these cases, the division of the court over them, and the opinions of the sev-

that one engaged in thebusinesl! of carrying messages who employs the

This

is mainly 'correct, but the deductions drawn from it-

GOTTSCHALK CO. V. DISTILLING & CATTLE FEEDING CO.

681

eral circuit courts in which they originated, do not, we think, leave this in doubt. . It would be unprofitable to extend the discussion. The decisions of the several state courts in cases involving the same questions, and their citation with approval by the supreme court of the United States, are virtuallyconclusive. See Chesapeake & P. Tel. Co. v. Baltirnore & O. Tel. Co., 66 Md. 399, 7 Atl. Rep. 809; State of .ML880uri v.Bell Telephone Co., 23 Fed. Rep. 539; State of Ohio v. Bell Telephone Co., 36 Ohio St. 296; State v. Bell Telephone Co.. 22 Alb. Law J. 363; Commercial Union Tel. Co. v. New England Telephone & Telegraph Co., 61 Vt. 241,' 17 Atl. Rep. 1071; Louisville Trangjer Co. v. American Dist.Tel. Co., 1 Ky. Law J. 144; Central Union Telephone Co. v. State, 118 Ind. 194, 19 N. E.Rep. 604; Budd v. New York, supra. The judgment of the circuit court is affirmed.

GOTTSCHALK Co. OF

BAJ.1'IMORE CITY 'V. DISTILLING & Co. OF ILLINOIS.

CATTLE

(Gil'cult

Court,

D.

Maryland.

April Ill, 1892.)

,

FOREIGN CORPORATIONS-SERVIOE ON AGENT.

A nonresident corporation sold its goods only to certain persons In each state, whom, in its circulars, it styled "distributing agents," under an agreement whei"&'· by each of the latter was to buy exclusively from it, and to sell at trade prices prescribed by it. On complying with these conditions for a given time, the "agent·" was to become entitled to" certain rebare, and also to have authority to issue to his wholesale customers certificates binding the corporation to pay a rebate directly to them, provided they continued for a given time to purchase from him exolusively. He sustained no other relation to the company, and the goods purchased by him were absolutely his own. Held, that he was not the agent of the corporation, within the meaning- of Code Md. art. 23, §§ 295, 296. authorizing service against foreign corporations upon their agenis or attOl'neys.

At Law. Action by the Gottschalk Company of Baltimore City against the Distilling & Cattle Feeding Company of Illinois. Motion to set aside the return of service. Granted. Wm. Pinkney Whyte and lsidor Rayner, for plaintiff. M. R. Walter, for defendant. MORRIS, District Judge. This action was begun in the superior court of Baltimore city. The defendant is an Illinois corporation. The sheriff's return is: "Summoned the Distilling & Cattle Feeding Com" pany of Illinois, by service on Charles A. Webb, agent; copy ofnarr. and notice to plead left with defendant." The defendant, naying appeared specially and moved to set aside the return, has removed the case into this court. The reasons urged in support of the motion to set aside the sheriff's return are that Charles A. Webb, upon whom the writ was served, was not, and is not, an agent of the defendant, or a person in its service, and that the defendant did not transact business within the