Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1892-04-28
TINE posrAL,s TELEPHONE.
Opinion OF the United States Circuit Court
of Apnea,s.

III nllauelpnlai alnrulng Inc Judgment
OF the court below in the case Of the
Postal Telegraph Company's suit for
the placing Of telephone in its Will
mington office;
United States circuit court Of appeals, third
circuit. The State of Delaware, ex-rela-
tione. The Postal Telegraph Company
vs. The Delaware and Atlantic Telephone
Company. IN error to circuit court of
United States, district of Delaware. Be-
fore Acheson. Butler and Green, u.
SUMMARY.
Butler, 1.-THE proofs show that up
to November 18th, 1879, the National
Bell Telephone Company and the
Western Union Telegraph Company
were owners Of rival telephone patents,
about which they had been engaged in
litigation. At that date they entered
into a contract by virtue of which the
former company became owner of the
patents previously held by the latter,
and the latter company acquired an ex-
elusive license TO use the telephone for
transmitting telegraphic messages, under
all the patents, for u term Of II years.
Subsequently the patents were as.
signed Subject to this license) to the
American Bell Telephone Company.
All licenses, including the respondents,
subsequently granted under the patents,
have been made subject to that of the
Western Union Company.
1t is no longer open to question that
telephone and telegraph companies are
subject to the rules governing common
carriers, and others engaged in like
public employment. This has been so
frequently decided that the point must
be regarded as settled. While it has not
been directly before the Supreme Court
of the United States, cases in which it
has heen so determined are cited APP
provingly by that court in Budd vs.
New York, not yet reported. While
such companies are not required TO
extend their facilities beyond such
reasonable limits as they prescribe for
themselves, they cannot discriminate
between individuals of classes which
they undertake to serve. AS common
carriers Of merchandise may prescribe
the points between which they will
carry, and the description of goods they
will accept, so doubtless may carriers OF
messages limit their business obliga-
tons. If, therefore, the respondent lad
confined the use OF the telephone faclli,
ties to the carriage OF personal messages
for individuals, excluding those of tcle-
graph companies and others who
forward messages for hire, the relator
would, probably, have no Just ground of
complaint. AS we have seen, however,
ii did not so limit its business, but car
ried telegraphic messages as well as
others.
The respondent must carry for all
persons belonging to the classes it un-
| dertakes to accommodate.
Had the owner of the patents, come
to Delaware and undertaken to do what
has been done, it can scarcely be ques-
toned that its act would have been UNI
lawful And yet this is substantially
what has occurred. The owner has
effected ii through the instrumentalitv
of license. The respondent has done
| what the owner authorized and re-
| quired. 1t is urged however, that the
| Western Union Company is not a mere
licensee Of the Bell Company, but some
thing more; that prior to its contract
with that company it was the exclusive
owner OF certain patents, under which
il might have applied the telephone to
its own exclusive use i'll carrying tele-
| graphic messages; that the effect Of its
contract was TO leave its right to do this
unimpaired, and that its subsequent
arrangement with the respondent for
carrying its messages is simply the cxer-
else OF this right, of which no one can
justly complain.
This statement is defective in several
particulars. First, 1t is not true that the
Western Unioncompany was originally
the owner of patents, which enabled il
to apply the telephone to its own use.
Its patents, as conceded on the argu.
ment, were mainly, if not exclusively,
for improvements on the Bell invention
which could not be used without license
from the Bell company; second, il
parted absolutely with these patents,
and took u license, not under them
alone, but also under the former patents
OF the Bell company. II Is therefore 4
license, and nothing more.
TIE respondent supposes Importance
is attributable to the fact that the tele.
phone is protected by patent, and cites
the telegraph company vs.. the telephone
company (i9 Conn j52), in which it is
said "thc relat0r insists that the re.
sPondcnt has offered its service d Tic
public as a common carrier that it ha.
thereby made itself the servant Of tho
public, ana subjected Itself to the opcra
lions Of The general law, which compel.
all such servants to serve applicants I'M
partially, regardless OF the limitation,
placed upon It's use q the Instruments
But the property Of tie American Bcl
Telephone Company in its patents j.
absolute and exclusive IL can rent d
scll itin whole or pare ii can refuse t
make or use, on TO ALLOW anyone else I,