way or for any lawful business or purpose whatever, except" certain specified classes of business.24 And a statute regulating "magnetic telegraph companies," and providing for the construction of telegraph lines, also includes telephone companies. 25 And a right given "magnetic telegraph" companies to appropriate lands for the erection of poles, includes telephone companies.26 Again, a telegraph company, acting under a statutory right to construct and operate telegraphs, is empowered to establish a telephone service.27 But in doing a telephone business, such company is subject to the provisions of the Telegraph Law as to receiving and transmitting messages and cannot discriminate, 28 24 Wisconsin Teleph. Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. 828, 1 Am. Elec. Cas. 687-691 (Wis. Rev. Stat., c. 86, §§ 1771, 1775, 1778, am'd C. 220, Laws 1883). See Roberts v. Wisconsin Teleph. Co., 77 Wis. 589, 46 N. W. 800. 25 Cincinnati Inclined Plane Ry. v. City & Suburban Teleg. Assn., 48 Ohio, 390, 27 N. E. 890, 12 L. R. A. 534, 29 Am. St. Rep. 559, 3 Am. Elec. Cas. 448. (Ohio Rev. Stat., §§ 3454, 3471.) In this case section 3471 expressly included telephone companies, but the court said that without that section "the term 'telegraph,' as a mode of transmitting messages and other communications, is sufficiently comprehensive to embrace the telephone." Id. 448, per Dickman, J. See San Antonio & A. P. R. Co. v. Southwestern Teleg. & Teleph. Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884, construing Tex. Rev. St. articles 698, 699. 26 San Antonio & A. P. R. Co. v. Southwestern Teleg. & Teleph. Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884, construing Tex. Rev. St. articles 698, 699; Southwestern Teleg. & Teleph. Co. v. Gulf C. & S. F. R. Co. (Tex.), 52 S. W. 106, under Sayles' Tex. Civ. Stat., art. 699. See also Northwestern Teleph. Exch. Co. v. Chicago, M. & St. P. R. Co., 76 Minn. 344, 79 N. W. 315. 27 Cumberland Teleph. & Teleg. Co. v. United Electric Ry. Co., 42 Fed. 273, 12 L. R. A. 544, 3 Am. Elec. Cas. 408, 410 (Tenn. Stat., 1885); State, Duke Pros. v. Central New Jersey Teleph. Co., 53 N. J. L. 341, 21 Atl. 460, 3 Am. Elec. Cas. 546, 549, 550; Chesapeake & Potomac Teleph. Co., etc. v. The Balti more & Ohio Teleg. Co., etc., 66 Md. 399, 7 Atl. 809, 2 Am. Elec. Cas. 416, 418. 28 Chesapeake & Potomac Teleph. Co., etc. v. The Baltimore & Ohio Teleg. Co., etc., 66 Md. 399, 7 Atl. 809, 2 Am. Elec. Cas. 416, 418 (Md. Act, 1868, c. 471, § 133, am'd 1884, c. 360). Under this amendment authority is conferred on both telegraph and telephone companies to form, operate and construct lines, and the law relating to telegraph So a Code provision, that actions may be brought against telegraph companies in any county through which the line passes or is operated, applies also to telephone companies.29 And it has also been decided that the telephone is included in the operation of a statute providing that a criminal prosecution will lie for the illegal obstruction or destruction of any line of telegraph or any part there of.30 companies was expressly declared to apply to telephone companies. That telephone companies are within a statute against discrimination by telegraph companies, see also Bell Telephone Co., etc. v. Commonwealth, ex rel. Baltimore & Ohio Teleg. Co. (Penn. Supr. Ct. 1886), 17 Week. N. of Cas. 505, 2 Am. Elec. Cas. 407, 411. (§ 33, clause 3, Corp. Act of 1874.) 29 Franklin V. Northwestern Teleph. Co., 69 Iowa, 97, 28 N. W. 461, 2 Am. Elec. Cas. 439, 440. (Iowa Code, § 2582.) That "telegraph" includes "telephone," see Richmond v. Southern Bell Teleph. & Teleg. Co., 42 U. S. App. 686, 28 U. S. C. C. A. 659, 85 Fed. 19, 3 Va. L. Reg. 856; Southern Bell Teleph. & Teleg. Co. v. Richmond (U. S. C. C., E. Dist., Va., 1897), 6 Am. Elec. Cas. 1, 4, per Goff, Cir. J. A telephone company incorporated under Telegraph Act of Pennsylvania, April 29, 1874, P. L. 74, is a telegraph company within the Tax Act. Commonwealth v. Penn. Teleph. Co., 2 Dauph. Co. Rep. 57 (Tax Act of Pennsylvania, June 7, 1879). See further Franklin V. Northwestern Teleph. Co., 69 Iowa, 97, 28 N. W. 461, 2 Am. Elec. Cas. 439; Central Union Teleph. Co. v. Bradbury, 106 Ind. 1. Pac. 698. It was said in this case: "If the consideration could be limited to a strict etymological point of view, it would have to be conceded at once that there is a difference in the meaning of the two words, the one conveying the idea of transmission of writing to a distance, the other the transmission of sound to a distance. In the very early history of the telegraph it is a matter of common knowledge that there was an actual recordation of letters under the Morse code. That soon passed away, and the telegraph operator of to-day receives by sound upon a principle no difference from that which obtains in the telephone. Again, in the case of submarine cables neither sound nor writing is always employed, but the varying deflections of an indicator within sight of the receiver serve the like purpose. The words, therefore, cannot be limited to their etymological meaning, and consideration must be had to their present sense and acceptation. The term telegraph means any apparatus for transmitting messages by means of electric currents and signals, and embraces within its meaning the narrower word telephone.' But is this construction justifiable in the case of the penal statute? Section 4 of our Penal Code provides that the rule of the common law that penal § 8a. Telegraph and telephone-Post Roads Act. Although it has generally been decided in the State courts that the word telegraph as used in a State statute embraces the telephone also,31 and though it might seem that a similar construction would apply to the Post Roads Act, as has been held in Minnesota,32 yet a position at variance with this view has been taken by the United States Supreme Court, it being there determined that the provisions of this act do not extend to telephone companies.33 § 9. Telegraph, in English statutes, includes telephone.- A telephone communicating the sound of the voice from the transmitting to the receiving end by means of a wire conveying an electric current is a telegraph within the meaning of the English Telegraph Act,34 whereby an exclusive privilege of transmitting communications by telegraph is given to the Postmaster-General. Nor are subscribers, who pay rental to a telephone exchange company for the purpose of telephonic communication, within the exception in said act in favor of private owners.35 So under the Telegraph Act of 1878,36 the words "telegraphic line" include anything whatsoever, which is used for maintaining telegraphic communication.37 statutes are to be strictly construed has no application to this code. All its provisions are to be construed according to the fair import of their terms with a view to effect its object and to promote justice.' In contemplation of this section, in recognition of the fact that a substantial identity exists between the two words, we think no hesitation need be expressed in declaring that under section 591 of the Penal Code a criminal prosecution will lie for the illegal destruċtion of a telephone wire." Per Henshaw, J. 31 See preceding section. 32 Northwestern Teleph. Exch. Co. v. Chicago, Milwaukee & St. P. R. Co.; 76 Minn. 335, 79 N. W. 315. See further as to this case § 45 herein. 33 City of Richmond v. Southern Bell Teleph. & Teleg. Co., 174 U. S. 761, 19 Sup. Ct. 778, 43 L. ed. 1162, 7 Am. Elec. Cas. 788. See 45 herein wherein this case is considered at length. 34 Teleg. Act, 1869, §§ 3 and 4. 35 Telegraph Act, 1869, §§ 4 and 5. Attorney-General V. Edison Teleph. Co., 50 Law J. Rep. Q. B. 145, Law Rep., 6 Q. B. D. 244, 43 Law Times, 687, 2 Am. Elec. Cas. 440-453. 36 § 2. 37 National Teleph. Co. v. Baker, L. R., 2 Ch. Div. 186, 4 Am. Elec. Cas. 321. § 10. Telegraph includes telephone The Telephone Cases. In Mr. Bell's specifications of his claim in The Telephone Cases,38 he says: "What I claim is (5) the method for an apparatus for the transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations similar in form to the vibrations of air accompanying the said vocal or other sounds." 39 This claim was for "improvements in telegraphy," and in the same case Mr. Bell's patent is spoken of as "his process of transmitting speech telegraphically; " "the transmission of vocal sounds by electrical undulations; a process "for sending and receiving articulate speech telegraphically;" a patent for "improvements in electric telegraphy.40 § 11. Telegraph statutes expressly including telephone.The telegraph and telephone are both expressly included in various State statutes relating to the incorporation of such companies; to the construction, maintenance and operation of their lines upon, over, under or along streets, highways, and waters of the State, or along or parallel to railroads therein; to the municipal or local government control of said corporations; to filing stated-interval reports; to assessment and taxation; to subways, conduits, or underground wires; penalty 38 117 U. S. 1. Cited, State, Duke Pros. v. New Jersey Teleph. Co., 53 N. J. L. 341, 3 Am. Elec. Cas. 546, 550, 21 Atl. 460. 39 This was the fifth claim of letters No. 174, 465, of March 7, 1876, to A. G. Bell; Dolbear v. Amer. Bell Teleph. Co., 126 U. S. 1, 8 Supr. Ct. 778. 40 Dolbear v. Amer. Bell Teleph. Co., 126 U. S. 1, 8 Supr. Ct. 778. It was also held in this case that no anticipation was to be found in the patents of C. F. Varley of London, England - granted, one, June 2, 1868, and the other, October 8, 1870 for improvements in electric telegraphs." Letters No. 186,787, of January 30, 1877, to A. G. Bell, for "improvements in electric telephony," were for the mechanical structure of an electric telephone, to produce the electrical action on which the patent of 1876 rests for "improvements in electric teleg raphy." The claim in the 1877 patent was (5) "the formation in an electric telephone, such as herein shown and described, of a magnet with a coil upon the end or ends of the magnet nearest the plate." And it was held that the claim was as a whole for an elec tric telephone and not for the several things in and of themselves. Dolbear v. Amer. Bell. Teleph. Co., 126 U. S. 1, 8 Supr. Ct. 778. statutes against discrimination and the neglect to deliver messages, and relating also to other matters of police power and legislative control. Most of these statutes will be noted under their proper sections throughout this work. 41 41 In Connecticut the statute (Gen. Stat., 1902, § 3903) provides for construction of telegraph and telephone lines over streets, highways, waters and along railroads, etc. In Florida the acts of incorporation include telegraph and telephone companies. (Rev. Stat., 1891, §§ 2252-2255.) In Illinois the act (Starr & Curtis's Ill. Annot. Stat., pp. 3890, 3893) provides for the construction and maintenance of telegraph or telephone lines in public highways, streets or alleys outside of incorporated cities, villages or towns or on any private roads leading to the same. In Kansas (Gen. Stat., 1905, §§ 1321, 1323), telephone companies come under the General Incorporation Law for private corporations. In Kansas taxation statute includes telephone (Kan. Gen. St., 1905, § 8259). In Louisiana (by Act April 10, 1880, Act No. 124, Laws 1880, p. 168, am'd'g Rev. Stat.), telegraph and telephone companies may construct, operate and maintain their lines along parish or public roads or works, or along or parallel to railroads in the State, or along or over the waters in the State, etc. In Maryland (Pub. Gen. Laws, art. 23, § 24), General Incorporation Law (Act 1868, c. 471), relating to telegraph companies, applies to telephone companies (by Act 1884, c. 360). The Chesapeake & Potomac Teleph. Co., etc. v. The Baltimore & Ohio Teleg. Co., etc., 66 Md. 399, 2 Am. Elec. Cas. 417, 418, 7 Atl. 809. And in 1886 another section was added (Act 1886, c. 161, § 24, class 11a), which provided for the formation of companies "for the transaction of any business in whicn electricity, over or through wires, may be applied to any useful purpose." In the Code of 1888 of the same State the two classes were combined so that section 24, article 23, read: "For constructing, owning or operating telegraph or telephone lines in this State, when the principal office of said corporation is in this State, and for the transaction of any business in which electricity over or through wries may be applied to any useful purpose." Frederick Electric L. & P. Co. v. Mayor, etc., of Frederick City, 84 Md. 599, 36 Atl. 362, 6 Am. Elec. Cas. 644, 651. In Michigan a statute (Ann. Stat., §§ 3718a, 3718b), expressly provides for the organization of telephone companies. In Missouri the statute (Rev. Stat., §§ 2716-2721) expressly includes telephone companies. So in Mississippi (Laws 1886, p. 93). In Nebraska (Neb. Comp. St. 1903, p. 1590), telegraph and telephone companies are granted the right of way along public highways. In New Hampshire (Pub. St. N. H. 1901, p. 264, Laws 1881, c. 54, p. 472), telephone companies are expressly included. In New Jersey the original acts are amended so as to expressly include telephone companies (Acts 1853, 1855, 1866, 1875, Rev., p. 1174, 1880, Rev. Sup., p. 1022, 1882, Rev. Sup., p. 1023, 1887, Pamph. L., p. 119, 1888, Pamph. L., p. 546, |