New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1883-07-21

request 10 AJlUfuey-tcDeTdl huh5en tudt no aPpiJ
for a writ of mandamus against the telegraph COM
panies. The matter had been referred to the coun-
sci of the Board, and later In the day an opinion
was received on the subject 1t was then resolved to
await the developments of the strike before pro-
ceeding further in the matter. Another consulta-
ton will probably be held to-day.
DANIEL O. THoMPsoN's VIEWS.
In the suits instituted against the railroad compan-
les last year the Attorney General was assisted by
F. G. James, Daniel G. Thompson and Simon Sterne
A TRIBUNE reporter called on Mf. Thompson az bis
Office No. 20 Wiam-st., TO make inquiries in regard
to the proposed suits against tho telegraph CON-
panies.
al have not been able to give the matter much
attention" Mr. Thompson said, since our clients
asked for an opinion a few hours ago. l believe.
however, from a cursory examination Of the case
and in this opinion the other counsel concur-that
at the present time the situation not sufficiently
grave to warrant resort to such remedy"
Do you think 1t may become soW
probably it may. Yet the question in this in
stance is somewhat different from the one presented
in the freigh handlers strike. in which we were
haally successful in our application for a mandamus
1t has been held generally by the courts that the
common law liability OF common carriers does not
attach To telegraph companies but IL has also been
held In several hat with regard to the public
they exercise functions analogous 10 those OF CON-
mon carriers. Their obligation to receive and
TRANSMIT messages from and for all who paw their
usual charges Is fixed Dy the statute, Chapter go,
Laws of 1913, III the following language:
Ii snail be the duty OF the owner the association
owning any telegraph lines doing business within tbis
state 10 receive dispatches rom ad Tor 0ther telegraph
lines and associations and from aud for any IN yidl i,
and on payment OF their usual charges for individuals
for transmitting dispatches. estaDsIed by the rule,
and regulations such teiegra Oh ue. 20 transmit tue
wiLn ipartiaty and good fa under tue penalty
500 for neglect refusal TO 40, 10 D. re-
with costs OF suit In tue name and Tor the cement
Of the or persons sending or desiring TO send such
dispatch
1.-The statute also provides that dispatches shall
be transmitted in the order received The position
of the telegraph company appears to be of the same
character IA that of q railway company with re-
spect to the public IN the that the ownership
its property private but the user of its property
Is public IN other words it holds Its property and
franchises primarily in trust for the public use.
This being the case of course IL IL amenable
to judicial control for the purpose OF enforcing the
rights of the public TO the common use OF its lines
This puts the company in similar position to that
of common carrier. although as the decisions say,
it does NOT carry anything"
BEARING OF THE RAILROAD DgCI,I0N
"What bearing would the decision IN tue railroad
cases have on this mat err
" In case the telegraph companies should refuse
to receive messages tor Transmission there can be
little doubt that under the decision OF the General
Term of the Supreme Court III tho railroad cases a
mandamus will lIe on the application of tue people
to compel them TO receive such dispatches for the
purpose OF forwarding them. The refusal to receive
would have 10 be 50 gener Il rs TO occasion puDnc
Inconvenience. II only individual dispatch here
aud there were refused the courts wOuli probably
hold. they did In the Onen case, tuat ihr rela OTs
remedy was by suit Tor damages ana not by mall
dsmus."
"Supposing the companies receive dispatches but
neglect 10 forward tuemT
- hen other considerations come IN. The statute
requires thar tney shall transmit dispatches re-
ccIycd with impsriiality aud COOL iaIth. The
cnnpa uies would excuse failure To transmit dis
pa lches received on the ground tnat they are
nnaOle 10 transmit' on account or sudden failure
of their operators 10 continue Work aud consequent
INABILITY supp.y their places. aud that tie Jaw
only requires that they exercise reasonable dill
gence III the tran,n sion. which, under such ctr
they arc exercising. tbey have
informed the puOlIc and all persons desiring
to SEND messages that they only taken subject
TO delay AMI That che sender OF any Dispatch agrees
hat the mrs-aLe shall be sent Ojeci 10 deay |
Also they Will seek 10 avail themseye of the con
dItions printed upon tneIr blanks with regard Ia |
unrrpcatrd messages. and in regard TO DELAYS aris
Ing from unavoidable interruption IN the working |
Did nor The Supreme Court pass upon the ques- |
tIoD # "a strike lar 10 offered excuse for a
TO exercise corporate functions
Yes. II decided mat the excuse has Ia law no |
validity. The duties Imposed must be discharged |
a whatevei cost. The Court said Tue rcpJnd-
'nts had lawful right TO take tnelr ground IN re-
pect of the price to De paid employees an adhere to
4 ii they chose but If the consequence of dong so
INABILITY 10 exercise tneir corporate iran
IN the great injury of the puOlic. they cannot
pc heard assert tnat such consequence must he
hOuldercd and borne by an innocent public, who
letner directly nor indirectly participated in their
.auses Telegraph companies having received |
'alulbe franchises from the Stae, they nO.d |
pub .ic trust whIch. having been conferred by the
state and accepted by the corporation. may DO en-
Orccd for the public benefit"
IN Avn
But tho companies accept messages only upon
.greement that they are subject to delay. Would |
lot that make a dlflerenccP
1T il the opinion OF the counsel who have exam
ned INTO the question that the companies have no
light 10 impose the additional condition. Ii ~, IN
act a refusal TO perform their corporate functions.
The question could be tested by demanding that
hey receive the message with the obnoxious cond-
ion stricken off, and then attempting TO compel
neIn to receive it or pay damages for not dong 80;
n to claim damages Notwithstanding the enforced
agreement"
" Wna advice have you given your clients in re-
yard To the matterf
" We have ADVISED that IN case the interruption
% business causes "a manifest public injury plain
;ase would be presented for tho III reference OF the
ittorney- General. But If the companies con
niue 10 receive messages for transmission
md send them, though after more less
elay, the practical difficulties OF obtaining
nd enforcing writ OF mandamus would
eem 10 make such n remedy futile, except as
precedent. The OmpanIes would undoubtedly dis
ute our facts and that would lead to prolonged
rIal.-Iast wear we had "A sigua advantage from
he circumstance that tue facts were admit cd, and
he sole question was one OF the power of the court
o issue the mandanus In the present case the
acts would be dlspnted. We have advised that
he responsibility OF the telegraph
ompanies can best be tested by suits
Dr damages, for the penalty provided by
ne sta ute Persons rendering kilograms should
SIX that they be repeated and offer the payment of
be extra charge tor repetition They should OBJ
,ct to the CT ira conditions Imposed and treat the
sfusal TO strike out those words ~ a refusal To |
ansmIt, and sue for the penalty"
WHAT GENERAL swAYNE SAYS.
General Wager Swayne, of the counsel for
le Western Union Company. thought that there
as no ground for the issue of a writ of
andamus against the company. lie said Ii il |