the maximum price which a telephone company shall charge for the use of its telephones, and the statute limiting the rental price of such instruments, and also the amount which shall be collected for conversations between cities and villages is con connected with the wires of the company, with facilities for transmitting and receiving messages by telegraph, would be of no use to a patron, unless he was learned in the art of telegraphy. But the telephone is entirely different; a telephone, with proper connections and facilities for use, can be used by any person; it requires no experience to operate it. Webster defines it as an instrument for conveying sound to a great distance.' In the case of the Central Union Telephone Co. v. Bradbury, 106 Ind. 1, the word telephone,' as used in the Act of April 13th, 1885, was held to mean an organized apparatus, or combination of instruments, usually in use in transmitting, as well as in receiving, telephonic messages.' By the use of the telephone persons are enabled to converse with each other while in their respective business houses or residences a great distance apart. Although of recent date, it has become of important use in the transaction of business, and there is no other invention or device to supply its place. While it may not supply and take the place of the telegraph in many instances and for many purposes, yet in others it far surpasses it, and is, and can be, put to many uses for which the telegraph is unfitted, and by persons wholly unable to operate and use the telegraph. It has been held universally by the courts, considering its use and purpose, to be an instrument of commerce and a common carrier of news, the same as the telegraph, and by reason of being a common carrier, it is subject to proper obligations, and to conduct its business in a manner conducive to the public benefit, and to be controlled by law. To conduct the business of the telephone by public telephone stations, and by sending messengers to notify persons with whom a patron of the company desires to converse in other parts of the city, to compel the person desiring to converse with others to remain at the public telephone station until the person with whom they desire to converse can be notified, and so arrange their business as to leave and go to another telephone station, and hold the conversation, renders the use of the telephone almost worthless. It is by reason of the fact that business men can have them in their offices and residences, and, without leaving their homes or their places of business, call up another at a great distance, with whom they have important business, and converse without the loss of valuable time on the part of either, that the telephone is particularly valuable as an instrument of commerce. It being an instrument of commerce, and persons or corporations engaged in the general telephone business being common carriers of news, what are the rights of the public, independent of the statute, as regards discrimination? It is not controverted in the argument, by counsel for the appellant, that the * * * stitutional. In legal contemplation all the instruments and appliances used by a telephone company in the prosecution of its business are devoted to a public use, and property thus devoted to such use becomes a legitimate subject of legislative regulation. Where a statute is one which the legislature had power to enact, the courts cannot sit in judgment upon either its justice or expediency, but relief must be sought of the legislature.' In the opinion in this case, the court said: "The telephone is one of the remarkable productions of the present century, and, although its legislature had the right to regulate the price to be charged and collected for the use of telephones and telephonic connections, facilities and service; and even if it were controverted, it is well-settled by authorities that the legislature has the right to do so, relative to the business connected within the State. Hockett v. State, 105 Ind. 250; Central Union Telephone Co. v. Bradbury, supra, and authorities cited in those cases; Johnson v. State, 113 Ind. 143; Munn v. Illinois. 94 U. S. 113; Ouachita Packet Co. v. Aiken, 121 U. S. 144; Patterson v. Kentucky, 97 U. S. 501." Central Union Telephone Co. v. State, 118 Ind. 194, 205. The word "telegraph," which means and includes any apparatus or adjustment of instruments for transmitting messages or other communications by means of electric currents and signals, embraces the "telephone." A company organized as a telegraph company, under the general incorporation law, before the passage of the Act of 1884, chap. 360, is fully authorized to do a general telephone business; and, in doing such business, it is subject to the provisions of the general incorporation law that apply to telegraph companies. The telegraph and telephone 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; they must serve all alike upon compliance with their reasonable rules and regulations. They cannot be exonerated from the performance of such duty by any conditions or restrictions imposed by contract with the owner of the invention applied in the exercise of the employment. The legislature of the State has full power to regulate the service of telephone companies as to the parties to whom facilities should be furnished, notwithstanding the instruments employed are the product of a patented invention. Chesapeake & Potomac Telephone Co. v. Baltimore & Ohio Tel. Co., 66 Md. 399. 1 Hockett v. State, 105 Ind. 250. discovery is of recent date, it has been in use long enough to have attained well defined relations to the general public. It has become as much a matter of public convenience and of public necessity as were the stage coach and sailing vessel a hundred years ago, or as the steamboat, the railroad and the telegraph have become in later years. It has already become an important instrument of commerce. No other known device can supply the extraordinary facilities which it affords. It may, therefore, be regarded, when re latively considered, as an indispensable instrument of commerce. The relations which it has assumed toward 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. All the instruments and appliances used by a telephone company in the prosecution of its business are, consequently, in legal contemplation, devoted to a public use. It is now a well settled legal proposition that property thus devoted to a public use becomes a legitimate subject of legislative regulation and control."'! § 143. Power to Regulate in Case of Patented Property. The claim has been set up that the State has no power to regulate a branch of business which is conducted under a right conferred by letters patent. But this position has not been sustained. In a late case in Ohio, the rule was stated by the court, as follows: "It is claimed that the statute above referred to cannot control or invalidate the contract in question, because the exclusive right to make, vend and use these telephone instruments is vested by the assignment of letters patent under an act of Congress in the American Bell Telephone Company; and that it is not within the power of a State to impair the right so secured. In our opinion, this statute is not the subject of constitutional infirmity. While it is true that letters patent secure a monopoly in the thing patented, so that the right to make, vend or use the same is vested exclusively in 1 Hockett v. State, 105 Ind. 250, 257. the patentee, his heirs and assigns, for a limited period; it is not true that a right to make, vend or use the same in a manner which would be unlawful except for the letters patent, thereby becomes lawful, under the act of Congress, and beyond the power of the States to regulate or control.' In a more recent case in Indiana, it was held that the fact that the telephone and appliances are articles patented under the constitution and laws of the United States, while vesting in the patentee, his heirs and assigns, the exclusive right for a limited time to make, use and vend the tangible property brought into existence by the application of the discovery covered by the letters patent, does not preclude State regulation of the property thus brought into existence.2 1 State v. Telephone Co., 36 Ohio sive that an exact definition, as apSt. 296, 311. 2 Hockett v. State, 105 Ind. 250. "It is first and most earnestly contended that as the articles used by the company, as above, are patented, under the Constitution and laws of the United States, the legislature of a State has no power to limit the price, use, sale or rental value of such articles, and that, as a consequence, all acts of a State legislature of the class to which the one before us belongs, are inoperative and ineffectual for any praetical purpose. Conceding the force as well as the plausibility of many of the arguments and illustrations used by counsel, the ready and, indeed, inevitable answer is, that the question thus presented ought no longer to be regarded as an open question. There is a reserved and, at the same time, well recognized power, affecting their domestic concerns, remaining in all the States, which the government of the United States cannot, and has seldom attempted to invade. This power is so varied and comprehen plicable to all its phases, has so far been found to be impracticable, but all the instances in which the existence of such a power has been judicially recognized, in particular cases, are quite numerous, as well as various, in their application to our complex system of government. This reserved power is usually, though, perhaps, not always, accurately denominated the police power of a State, and embraces the entire system of internal State regulation, having in view not only the preservation of public order and the prevention of offenses against the State, but also the promotion of such intercourse between the inhabitants of the State as is calculated to prevent a conflict of rights, and to promote the interests of all. Cooley Const. Lim. 572. It is a power inherent in every sovereignty, and is, in its broadest sense, nothing more than the power of a State to govern men and things within the limits of its own dominion. License Cases, 5 How. 504, 582. It extends to the protec § 144. Application of the Rule to the Baking Business. -It is well settled that the State has power to regulate the manufacture of bread. It may require all persons engaged in the baking business to take out a license author tion of the lives, limbs, health, comfort and convenience, as well as the property of all persons within the State. It authorizes the legislature to prescribe the mode and manner in which every one may so use his own as not to injure others, and to do whatever is necessary to promote the public welfare, not inconsistent with, is our organic law. Thorpe v. R. & B. R. R. Co., 27 Vt. 140. In 1867 letters patent were issued to one De Witt for a discovery in the manufacture of a quality of oil known as 'Aurora Oil,' and one Patterson became the assignee of the right conferred upon De Witt by his letters patent. Under a system of inspection provided by the laws of Kentucky, some casks containing this Aurora oil were branded 'unsafe for illuminating purposes,' and notwithstanding a statute of that State making it penal offense to sell oil thus branded, Patterson sold the casks of oil in question to one Davis. Patterson was thereupon indicted, tried and convicted in one of the Kentucky courts for the alleged unlawful sale of these condemned casks of oil. This judgment convicting Patterson of a criminal offense having been affirmed by the court of appeals of that State, the cause was taken to the Supreme Court of the United States to test the validity of the statute under which Patterson was so convicted, as a restraint upon the sale of a commodity covered by letters patent of the United States. Upon a review of all the questions involved, the validity of the statute was maintained, and the judgment of the court of appeals was in all things affirmed. See Patterson v. Kentucky, 97 U. S. 501. The court held in that case, and as we have no doubt correctly, that all that the letters patent secured was the exclusive right in the discovery, and that the right thus secured was an incorporeal right, and hence without 'tangible evidence;' that the right to sell the oil was not derived from the letters patent, but existed and could have been exercised before the issuing of such letters, unless prohibited by some local statute; that because the patentee acquired a monopoly in his discovery, and was hence secure against interference, it did not follow that the tangible property which came into existence by the application of the discovery was beyond the control of State legislation; that, on the contrary, the right of the property in the physical substance, which is the fruit of the discovery, is altogether distinct from the discovery itself, just as the property in the instruments or plate by which copies of a map are multiplied is distinct from the copyright itself; that hence the right conferred upon the patentee and his assigns to make, use and vend the corporeal article or commodity brought into existence by the application of the patented discovery must be exercised in subordination to the police or local regulations established by the State. The doctrine of that case |