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* *

81 Delaware & Atl. Teleg. & Teleph. Co. v. State, ex rel. Postal Teleg. Cable Co., 3 U. S. App. 30, 105, 2 U. S. C. C. A. 1, 50 Fed. 677, 39 Am. & Eng. Corp. Cas. 516, 4 Am, Elec. Cas. 579, 581, per Butler, Dist. J., citing Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 4 Inter. Com. Rep. 45, 36 Am. & Eng. Corp. Cas. 31. See also State ex rel. Postal Teleg. Cable Co. v. Delaware & Atl. Teleg. & Teleph. Co., 47 Fed. 633, 3 Am. Elec. Cas. 533, 538, 541, 542, per Wales, J., citing numerous cases. Examine Central Un. Teleph. Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035, 6 Am. Elec. Cas. 679, 688, per Reinhard, J.; Cannon v. Western Un. Teleg. Co., 100 N. C. 300, 6 Am. St. Rep. 590, 21 Am. & Eng. Corp. Cas. 124, 2 Am. Elec. Cas. 699, 704, 6 S. W. 731, per Smith, C. J. But see Primrose v. Western Un. Teleg. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883, 5 Am. Elec. Cas. 809, 827, 14 Sup. Ct. 1098, per Mr. Justice Gray; Delaware & Atl. Teleg. & Teleph. Co. v. State, first case cited in this note. Examine also cases in last note herein.

$2 State ex rel. Baltimore & Ohio

Teleg. Co. v. The Bell Teleph. Co., 23 Fed. 539, 8 Am. & Eng. Corp. Cas. 7, 24 Am. Law Reg. 573, 2 Am. Elec. Cas. 404, 406, per Brewer, J., cited in Commercial Un. Teleg. Co. c. The New England Teleph. & Teleg. Co., 17 Atl. 1071, 15 Am. St. Rep. 893, 2 Am. Elec. Cas. 426, 435, per Tyler, J.

83 State ex rel. Webster v. Nebraska Teleph. Co., 17 Neb. 126, 52 Am. Rep. 104, 8 Am. & Eng. Corp. Cas. 1, 44, 22 N. W. 237, 1 Am. Elec. Cas. 700, 706, per Reese, J.

84 State ex rel. Baltimore & Ohio Teleg. Co. v. Bell Teleph. Co., 23 Fed. 539, 8 Am. & Eng. Corp. Cas. 7, 24 Am. Law Reg. 573, 2 Am. Elec. Cas. 404, 406, per Brewer, J. (cited, Commercial Un. Teleg. Co. v. The New Eng. Teleph. & Teleg. Co., 61 Vt. 241, 17 Atl. 1071, 15 Am. St. Rep. 893, 2 Am. Elec. Cas. 426, 435, per Tyler, J.; State ex rel. Postal Teleg. Cable Co. v. Delaware & Atl. Teleg. & Teleph. Co., 47 Fed. 633, 3 Am. Elec. Cas. 533, 541, per Wales, J.); Central Un. Teleph. Co. v. Fehring, 146 Ind. 189, 45 N. E. 64, 6 Am. Elec. Cas. 694, 695, per Monks, C. J.; Central Un. Teleg. Co. v. Falley, 118 Ind. 144,

194, 206, 10 Am. St. Rep. 114, 19 N. E. 604, 2 Am. Elec. Cas. 27, 38 et seq., per Olds, J.; S. C., 124 Ind. 600, 3 Am. Elec. Cas. 533,

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common carrier of telephone messages," per Olds, J.; Central Un. Teleph. Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035, 6 Am. Elec. Cas. 679, 688, per Reinhard, J.; Chesapeake & Potomac Teleph. Co., etc. v. Baltimore & Ohio Teleg. Co., etc., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167, 16 Am. & Eng. Corp. Cas. 219, "they are public vehicles of intelligence," per Alvey, C. J.; State ex rel. Amer. Un. Teleg. Co. v. Bell Teleph. Co. (St. Louis Cir. Ct.), 22 Alb. L. Jour. 363, 1 Am. Elec. Cas. 304, per Thayer, J. See § 21 herein.

Telephone companies like telegraph companies are common carriers of information." Muskogee Nat. Teleph. Co. v. Hall, 118 Fed. 332, 8 Am. Elec. Cas. 64, 65, per Thayer, Cir. J.; case reverses decree of U. S. Court of Appeals in Indian Ty., 4 Ind. Ty. 18, and atfirms decree of U. S. Court in Indian Ty., Northern Div., rendered April, 1900. This decision concerned right to exclusive franchise.

That the decisions that telephone companies are common carriers is

"solid ground see Heaton-Penin

sular Button-Fastener Co. v. Eureka Specialty Co., 77 Fed. 288, 293, per Lurton, Cir. J.

The relations which a telephone company has assumed towards the public make it a common carrier of news, a common carrier in the sense in which the telegraph is a common carrier, and impose upon it certain well defined obligations of a public character. Hockett v. State, 105 Ind. 250, 258, 55 Am. Rep. 201, 5 N. E. 178, 11 Am. & Eng. Corp. Cas. 577, 2 Am. Elec. Cas. 1, 8, per Niblack, C. J., followed in Central Un. Teleg. Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721, 2 Am. Elec. Cas. 14, 20.

"Telephone companies have been held from the first to be common carriers in the sense that they are bound to furnish service to any one offering to comply with their reasonable requirements, not only in respect to their public stations system, but also as to the so-called private system of instruments installed in offices, residences, and places of business." State ex rel. Payne v. Kinloch Telephone Co., 93 Mo. App. 349, 67 S. W. 684, 8 Am. Elec. Cas. 863, 866, per Goode, J.

85 State ex rel. Gwynne v. Citizen's Teleph. Co., 69 S. C. 434, 48 S. E. 460, 7 Am. Elec. Cas. 838. The court, per McIver, C. J., said: "The first, and as it seems to us the controlling, question in the case, is, we think, conclusively determined by the provisions of section 3 of article 9 of the present constitution, which reads as follows: All railroad, express, canal and other corporations engaged in the transportation for hire and all telegraph and other corporations engaged in the business of transmitting intelligence for hire, are common carriers in their respective lines of business, and are subject to liability and taxation as such,'- the balance of the section not being pertinent to the present inquiry. Now, if the respondent,

Citizens' Telephone Company, is a corporation, and is 'engaged in the business of transmitting intelligence for hire,' then it is expressly declared by the hignest authority to be a common carrier. That it is a corporation is not and cannot be denied, and, as we think, it is equally undeniable that it is engaged in the business of transmitting intelligence for hire. Indeed, that, so far as appears in this case, is the only business in which it is engaged. The distinction sought to be drawn by counsel for respondent in his argument here, between the mode of transmitting intelligence or a message, as it is usually called, by telegraph and by telephone, is a dis

tinction without a difference, so far as the question with which we are concerned is involved. While it is true that a person desiring to send a message by telegraph to another usually writes out his message and delivers it to the agent of the telegraph company (though we see no reason why it should not be delivered by word of mouth, or over a telephone, as no doubt is frequently the case), and the agent transmit such message, through the agency of instrumentalities provided by the telegraph company, to another agent of such company at its destination, who writes it out, or delivers it by word of mouth or over the telephone to the person for whom such message is intended, whereas a person desiring to send a message by telephone simply goes to the instrument provided for the purpose by the telephone company, calls up the agent of the company at the central office, and expresses his desire to be connected with the person to whom he wishes to speak, which being done by the agent of the company, at the central office, the message is delivered directly to the person for whom it is intended, through the instrument and over the wires provided by the telephone company for the purpose, in both instances the intelligence or message is actually transmitted by the use of agencies and instrumentalities furnished either by the telegraph or the telephone company, for which they are entitled to receive

proper compensation, and one is just as much engaged in the business of transmitting intelligence for hire as the other. Both are devices by which one person is enabled to communicate with another beyond the reach of the human voice, unaided by some artificial appliance, and, although there are some differences in the mode of transmitting intelligence, yet the end sought and attained by each is substantially the same. Again, it is argued that there is another difference between the telegraph and the telephone which differentiates the former from the latter, and prevents legislative or constitutional provisions expressly applying to the former from being applied to the latter, and that is in the one case the purport of the message or intelligence to be transmitted must be known to the agent of the company, while in the other it need not be. In the first place, this difference does not always exist, as a matter of fact; for in many cases the purport of messages sent by telegraph are just as effectually concealed from the agent of a telegraph company as a message sent by telephone,— in fact, more so; for in the case of a telegram in cipher, which is quite common, the purport of the message is entirely concealed, and is intended to be concealed, from the knowledge of the telegraph operator, and from every one else, except a person holding the key to the cipher, while, on the other hand, messages sent by telephone are not, as matter of fact,

always concealed from the knowledge of the agent of the telephone company, nor from third persons who may choose to listen. But, even if such differences did exist, it is difficult to conceive how that would affect the substantial identity of the business in which the two companies are engaged. Again, it is argued that the framers of the constitution, being, as they were, familiar with the use of the telephone, would, if they had intended to include telephone companies within the provisions of the section of the constitution above quoted. have mentioned such companies by name. This argument is based upon a misconception of the fundamental idea of the constitution, which is that such an instrument is the organic law, and deals with general principles, and does not ana should not descend into detail. But the conclusive answer to such argument is that the framers of the constitution certainly did not intend to limit its operation to telegraph companies, as otherwise the additional words, and other corporations engaged in the business of transmitting intelligence for hire, would become wholly unmeaning and useless. These additional words were manifestly inserted for some purpose, and it is impossible to conceive of any other purpose except to include every other corporation, by whatever name it may be called, and by whatever means it conducts its business, which may be 'engaged in the business of trans