imposes the duty not only upon the original grantee but also upon every successive holder to serve the public in accordance with the terms of the original grant. Such company is not only a carrier but is a public agent in exercising the powers mitting intelligence for hire,' and, as we have shown that a telephone company is engaged in that business, telephone companies must be regarded as included within the terms of the constitutional provision. The reference to section 3 (manifestly a misprint for section 4) of article 8 of the constitution, and to the act of 1898 (22 St. at Large, p. 779), and also act of 1898 (22 St. at Large, p. 780), to support respondent's contention, will next be considered. This constitutional provision simply forbids the general assembly from passing any law 'granting the right to construct and operate a street or other railway, telegraph, telephone or electric plant, or to erect water or gas works for public uses, or to lay mains for any purpose, without first obtaining the consent of the local authorities in control of the streets or public places proposed to be occupied for any such or like purposes.' What possible bearing this provision can have upon the question we are considering, to wit, whether a telephone company can be regarded as, in any sense, a common carrier, it is impossible to conceive. Indeed, if it has any bearing at all, it would seem to be averse to the contention of respondent; for it seems to recognize the idea that, when a telephone company establishes its plant in a town or city, it devotes its property to public uses, and thus brings it under legislative control. Nor do we see the relevancy of the two acts above re ferred to. The former forbids telephone companies from making unreasonable discrimination in the rates at which they furnish telephone service to its patrons, and this necessarily implies that its business is subject to legislative control. The other act simply invests the railroad commission with power to regulate the charges of express companies for transportation and the charges of telegraph companies for the transmission of messages. But until it is shown, as it has not and cannot be shown, that the power to regulate charges by law is a feature essential to the business of a common carrier, the provisions of this act do not even tend to show that a telephone company is not a common carrier. Indeed, as a matter of fact, the rates of charges by all classes of common carriers for example, steamboat companies -are not regulated by law. But, even if there were no constitutional provision and no legislation upon the subject, we are of opinion that this question is settled by the principles of the common law, which, being elastic in their nature, may be applied to subjects and conditions which have but recently become known and used in the business of the country. In this State we have no case, so far as we are informed, upon the question whether a telephone company is, in any sense, a common carrier, and we have only two cases relating to the somewhat analogous question as to whether a telegraph - conferred and public utility is the consideration for the governmental grant.86 Trolley cars have characteristics of their own, such as weight, momentum, velocity, and are subject to quick control. It is said, however, that these peculiarities are not criteria by which such cars are set apart for legal treatment in a class by themselves; but that they are merely circumstances that have sometimes to be taken into account in applying to a particular case the general rule governing the relative rights, duties, and obligations of pedestrians and others having a right to use the streets, and the corporations running such trolley cars. 87 § 28. Electric street railroad Relation to railroad and street surface railway. In the application of the law, there is a certain relation between electric street surface railways and railroads, and also between the former and other street surface railways, since in all cases analogous principles must, outside of statutory enactments, to a great extent, be resorted to in determining legal points, arising in connection with electric railways. This is evidenced by those cases wherein the latter have been organized under general acts of incorporation of street railways. But this rule would apply only to the general rights, duties and obligations of such corporations. It is true, however, that in the manner of its construction, both common company is a common carrier." for the transmission of news, without any discrimination whatsoever in favor of or against anyone; and this is SO under the well-settled principles of the common law, without the aid of any constitutional or statutory provision imposing such an obligation." 86 Mayor, etc. of Borough of Rutherford v. Hudson River Traction Co., N. J. 1906, 63 Atl. 84, 88, per Pitney, J. See §§ 278, 529 herein. 87 McGrath v. North Jersey Street Railway Co., 66 N. J. L. 312, 49 Atl. 523, 10 Am. Neg. Rep. 332. of the line and its cars, and in the maintenance and operation of the same, an electric railway differs in many respects from either a commercial railroad or other street surface railways. It differs from the former, in that it does not ordinarily carry freight, and in the fact that it is calculated to continuously and constantly relieve the burden of travel, or rather to expedite travel, during the passage of its cars over streets, reference always being presumably had to the rights of the public in said streets, and to the use thereof. It also differs from other street surface railways, in that a greater degree of care should be exercised, commensurate with the increased danger to the public by reason of the character of the motive power, the appliances used, the character of the construction, the higher rate of speed, and the like. These differences, however, are rather questions of fact, by which the application of the law must be governed. It may be added in this connection, as stated elsewhere in this work, that the motive power does not determine whether or not a railway is a street railway.88 A law which exempts stockholders of "railroad" corporations from individual liability, in an amount equal to the amount of their stock, does not, it is held, include elec 88 United States: Williams V. City Elec. Ry. Co. (U. S. C. C., E. D. Ark.), 41 Fed. 556, 3 Am. Elec. Cas. 231. Florida: Bloxham V. Consumers Elec. L. & St. R. Co., 36 Fla. 519, 51 Am. St. Rep. 44, 18 So. 444, 29 L. R. A. 507. Kentucky: Louisville, etc., R. Co. v. Louisville, 2 Duv. (Ky.) 175. Michigan: Nichols v. Ann Arbor, etc., Ry. Co., 87 Mich. 361, 49 N. W. 538. Minnesota: Carli v. Stillwater St. Ry. Co., 28 Minn. 373, 41 Am. Rep. 290, 3 Am. & Eng. R. Cas. 226, 10 N. W. 205. Missouri: Hannah v. Metropolitan St. R. Co., 2 Mo. App. Rep. 699. New York: Hornellsville Elect. Ry. Co. v. New York, L. E. & W. R. Co., 83 Hun (N. Y.), 407, 31 N. Y. Supp. 745 -this case does not decide, but merely illustrates the general principle of the application of the street railroad law to an electric railway, and of this same character is Matter of Rochester Elec. Ry. Co., 57 Hun (N. Y.), 56, 32 N. Y. St. R. 1, 10 N. Y. Supp. 379- - this case was affirmed, 123 N. Y. 351, 33 N. Y. Supp. 695, 25 N. E. 381; so also is Matter of Saratoga Elec. Ry. Co., 58 Hun (N. Y.), 287, 34 N. Y. St. R. 556, 12 N. Y. Supp. 318. Ohio: Clement v. City of Cincinnati, 16 Bull. 355, cited in Pelton v. East Cleveland R. R. Co., 22 Week. L. Bull. (C. P. Ohio, 1889), 67, 3 Am. Elec. Cas. 215, 222, per Stone, J. Pennsylvania: Hestonville, etc., R. Co. v. Philadelphia, 89 Penn. St. 210. See § 168 herein. tric street car corporations or companies.89 So, although a distinction exists between electric street railways and commercial railroads, with respect to freight traffic, a statute may confer authority upon the former to carry persons and property in cars, for compensation, and such legislative enactment authorizes the operation of cars designed and appropriated exclusively for carrying freight, property or express matter.90 A railroad is not a street railway, within the meaning of a statute, providing that the formation of a street railway company is not authorized under said enactment, when the proposed route of said railroad is not upon any street or highway, but upon private land, just inside the fence, along a turnpike road.91 § 28a. Same subject. In a recent case it is held that an electric railway company operated only by electricity is not included within the term "railroad company" within the meaning of the railroad commissioners' law, even though it is owned and managed by a corporation whose charter permits the use of steam as a motive power; and that the board of railway commissioners has no jurisdiction to entertain an application by a railroad company for leave to cross its track with that of a railway company using only electricity as a motive power.92 89 Ferguson v. Sherman, 116 Cal. 169, 47 Pac. 1023, 37 L. R. A. 622, 6 Am. & Eng. R. Cas. (N. S.) 567. 90 Degrauw v. Long Island Elec. Ry. Co., 60 N. Y. Supp. 163, 43 App. Div. 502, affd. 163 N. Y. 597, cited in Matter of Stillwater & M. St. R. Co., 171 N. Y. 589, 597, under New York Laws 1890, c. 565, § 90. See Wells Rd. Corp. N. Y. (1899), p. 221, § 90; id. p. 712, § 90. 91 Gay v. Bristol & B. R. Co. (C. P. 1899), 22 Penn. Co. Ct. 332. 92 Kansas City, O. B. & E. R. Co. v. Board of Rd. Commrs. (Kan. 1906), 84 Pac. 754. The court, per Mason, J., said: "It might be argued that, at the time the test of being operated by steam' was So a statute which provides that all engine drivers and conductors must cause the trains which they respectively drive and conduct to come to a full stop within fifty feet of the place of crossing where the tracks separate and independent railroads cross each other, does not apply to a street railway. So as to require street railroad cars to stop before crossing a railroad track, even though the word "railroad" includes street railroads operated by electricity since the question whether a particular statute applies to a certain form of railroad is one of construction and where the language obviously does not include a street railway it will be excluded.93 Again a motoneer of a street railway company is not one for whose benefit the employees' liability statute of Iowa was enacted even though it applies in terms to "every corporation operating a railway" which phrase ordinarily includes, when ment were otherwise convincing, the failure to modify the language of the sections quoted in 1901, when the entire act was remodeled, must be taken to indicate that, notwithstanding the changed conditions since the board of railroad commissioners was first established, the legislature was still content to limit its powers to the control of railroads operated by steam." The New York case above cited was a suit brought for specific performance of a contract under which the defendant had covenanted to run cars to a certain point, subsequently the defendant refused to run the cars as agreed. The court, per Bartlett, J., p. 157, said: "It is insisted by the defendant that the adoption of the trolley system is in contemplation of law a use of steam under the clause in the contract which provides that if the defendant shall use steam as a motive power between Ninth avenue and Fifteenth street, in the city of Brooklyn and Coney Island, either party can terminate the contract on six months' notice, and that the correspondence and answer in this case are equivalent to notice and the contract no longer exists. We agree with the Special Term that the electrical system adopted by the defendant cannot be regarded as the use of steam as a motive power. (Hudson River Teleph. Co. v. Watervliet Turnpike & R. Co., 135 N. Y. 393, 402, 48 N. Y. St. R. 417, affg. 61 Hun, 140, 161, 39 N. Y. St. R. 952, 966, 15 N. Y. Supp. 752, 763.) It would be in disregard of the obvious and natural meaning of the language to hold otherwise. We cannot agree with the General Term that the words 'steam as a motive power' was only another form of referring to rapid transit by whatever means accomplished. To so hold would be to make a new contract for the parties." 93 Georgia Ry. & Electric Co. v. Joiner, 120 Ga. 905, 48 S. E. 336, Ga. Civ. Code, § 2234; Savannah Railway v. Williams, 117 Ga 414, 419. |