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It was

class of children whom the court will pro

TELEPHONE LAW PATENT RIGHT nounce non sui juris and that which is rele CONSTITUTIONAL LAW - POWER OF

STATE TO REGULATE PROPERTY CRE. gated to the decision of the jury, it is not

ATED UNDER A PATENT - PROPERTY surprising to find testimony that the child is

DEVOTED TO PUBLIC USE. one of more than ordinary intelligence and activity or possessed of discretion in ad

HOCKETT V. STATE. vance of its years and size, 22 for it being established that the child is capable of ap

Supreme Court of Indiana, Novembr, 1885. preciating danger and avoiding it, the parent

TELEPHONE State Regulation Act Limiting

Rental Price of Instruments-Constitutional Law.will not be subject to the charge of negligence

The State has the right to prescribe the maximum in allowing it to go at large with a certain de

price which a telephone company shall charge for the

use of its telephones, and the act of April 13, 1885, gree of freedom.

limiting the rental price of such instruments, and also The rule which imputes the negligence of the amount which shall be collected for conversations the parents of children, or the custodians of between cities and villages, is constitutional. other persons. now sui juris, to their respec

Patent-Power of State to Regulate Proptive charges found expression in this country

erty Created Under—The fact that the telephone and

appliances are articles patented under the Constitufor the first time in the case of Hartfield v.

tion and laws of the United States, while vesting in Roper,23 and twenty years before, it received the patentee, his heirs and assigns, the exclusive right the sanction of the English courts.

for a limited time, to make, use and vend the tangible

property brought into existence by the application of resolved in Hartfield v. Roper that where a the discovery covered by the letters patent, does not child of such tender age as not to possess

preclude State regulation of the property thus brought

into existence. sufficient discretion to avoid danger, is per

Property Devoted to Public Use-In legal mitted by its parents to be in a public high contemplation all the instruments and appliances used way without any one to guard it, and is there by a telephone company in the prosecution of its bus

iness are devoted to a public use, and property thus run over by a traveller and injured, neither

devoted to such use becomes a legitimate subject of trespass nor case will lie, unless the injury legislative regulation. be "voluntary" or the result of "gross neg

Guaranteed Rights in Property.--State reg. lect” on the part of such traveller.

ulation of property devoted to a public use is not the

taking of property for a public purpose within the action for such injury, if the conduct of the

meaning of $ 21, of art. 1, of the Constitution of this child be such as would constitute negligence State, nor is it an interference with the guaranteed

rights of the citizen in private property. on the part of an adult, although the child, by reason of its tender age, be incapable of

Word TelephoneIncludes all Instruments

for Reception aud Transmission of Messages. The using that degree of care which is expected word "telephone,” as used in the act of April 13, of a person of prudence, the want of such 1885, was intended to designate, and did in fact refer care on the part of parents or guardians of

to an apparatus composed of all the usual and neces.

sary instruments for the transmission and reception the child furnishes a complete defence to an of telephonic messages, and not to a single instrument action by the child for the injury sustained.23 only. A single extract from the opinion of the

Term of Art.-Evidence-The word “telecourt will be sufficient to present the grounds

phone” having become a term of art, evidence is ad.

missible to explain its proper meaning. of the decision. Said Cowen, J.24 An infant

. Legislative Intention. There being nothing is not sui juris. He belongs to another to

in the act of April 13, 1885, or in other laws, which re. whom discretion in the care of his person is quires a telephone company to construct a new line exclusively confided. That person is keeper against its will, or to maintain an old line longer than

it may feel justified in doing, evidence that it could and agent for this purpose; and, in respect

not construct, or continue to use a particular line at to third persons, his act must be deemed that the price limited without loss, cannot be considered in of the infant; his neglect, the infant neglect. determining the legislative intention in passing such Milwaukee, Wis. ALBERT N. KRUPP.

Justice or Expediency of Act-Remedy.

Where a statute is one which the legislature had pow. 21 Oldfield v. Harlem, etc. R. Co., 14 N. Y. 310.

er to enact, the courts can not sit in judgment upon 22 Lynch v. Smith, 104 Mass. 53.

either its justice or expediency, but relief must be 23 21 Wend., 615.

sought of the legislature. 24 21 Wend.,619.

From the Marion Criminal Court.
J. E. McDonald, J. M. Butler. A. L. Mason, T.

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In an

act.

one

A. Hendricks, C. Baker, O. B. Hord, A. W. Hendricks, A. Baker, E. Daniels, Williams, and Thompson, for appellant; F. T. Hord, AttorneyGeneral, A. C. Harris, W. H. Calkins, C. Byfield and L. Howland, for the State.

NIBLACK, O. J. delivered the opinion of the court:

On the 13th day of April, 1885, the legislature of this State passed an act entitled “An act to regulate the rental allowed for the use of telephones, and fixing a penalty for its violation," the tenor of which is as follows:

"SECTION 1. Be it enacted by the General Assembly of the State of Indiana, That no individual, company or corporation, now or hereafter owning, controlling or operating any telephone line in operation in this State shall be allowed to charge, collect or receive as rental for the use of such telephones, a sum exceeding three dollars per month where one telephone only is rented by one individual, company or corporation. Where two or more telephones are rented by the same individual, company or corporation, the rental per month for each telephone so rented shall not exceed two dollars and fifty cents per month.

"SEC. 2. Where any two cities or villages are connected by wire operated or owned by any individual, company or corporation, the price for the use of any telephone for the purpose of conversation between such cities or villages, shall not exceed fifteen cents for the first five minutes, and for each additional five minutes no sum exceeding five cents shall be charged, collected or received.

"SEC. 3. Any owner, operator, agent or other person, who shall charge, collect or receive for the use of any telephone any sum in excess of the rates fixed by this act, shall be deemed guilty of a public offence, and on conviction shall be fined in any sum not exceeding twenty-five dollars.”

On the 27th day of July, 1885, Theodore P. Haughey, requested the Central Union Telephone Company, a corporation organized under the laws of the State of Illinois, but owning and operating a telephone exchange, and system of telephone lines, at the city of Indianapolis, in this State, to rent him one telephone, to be used at his residence upon his farm, four and one-half miles from the company's telephone exchange, and two miles outside of the corporate limits of the city of Indianapolis, and to connect such telephone with the exchange by the erection of the necessary poles and wires. In response to this request, the company offered to rent to Haughey a hand telephone and magneto bell, and to connect them with its exchange, and to furnish exchange service from 7 o'clock, a. m., until 6 o'clock, p. m., each day, for $3 per month, the company to have the right to place other subscribers upon the same line. But Haughey declined to accept that offer, and instead entered into a contract with the company for the use of “one battery transmitter and one magneto telephone,” and “the necessary ap

pliances for connecting them with the exchange,” upon certain terms and conditions named in the contract, for which he agreed to pay the company the sum of $33.50 for each quarter, or $11.16 2-3, per month. The contract says:

"The above total sum is based upon the charges itemized as follows: “Rental of one magneto telephone and

battery transmitter, (two telephones), at the rate of, $20 per ann'm “Labor and service charges for

.$114 6

switching,construction and maintenance charges for lines, batteries, central office apparatus, magneto bell and other appurtenances, at the rate of,

The telephone company built the line and furnished the equipments for the use of Haughey, called for by its contract with him.

At the expiration of the first three months after the contract went into effect, the appellant, John E. Hockett, acting as the district superintendent and general agent of the company at Indianapolis demanded of, and received from Haughey the sum of $33.50, claimed to be due under the contract for the latter's use of the line and equipments therein provided for, during the preceding three months.

An information was thereupon filed against Hockett, charging him with a violation of the provisions of the act of the legislature, herein above set out, and, upon proof of the matters above stated, with others of a formal, incidental, or a merely collateral character, the court below found him guilty of having charged more for the use of a telephone than the law permitted him, as well as the company he represented, to do, and, after overruling a motion for a new trial, adjudged that he pay a fine as a penalty for the commission of a criminal offence.

It was shown at the trial that articles furnished to Haughey as a telephone equipment, as well as all the other mechanical contrivances used by the company in the transmission of words and sounds over its wires, are patented articles, and that the company holds the right to use these patented articles by assignment either direct or remote from the patentee.

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 practical 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 can not, and has seldom attempted to invade. This power is so varied and comprehensive that an exact definition, as applicable to all its phases, has so far been found to be impracticable, but 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 offences 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 interest 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 protection 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 its own organic law. Thorpe v. R. & B. R. R. Co., 27 Vt. 140.

In 1867 letters patent were issued to one DeWitt 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 DeWitt by his letters patent. Under a system of inspection provided by the laws of Kentucky, some casks containing this Aurora oil branded “unsafe for illuminating purposes,” and notwithstanding a statute of that State making it a penal offence 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 offence 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 from 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 substance; 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 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 was approved and followed in the more recent case of Webber v. Virginia, 103 U.S. 344, and has the support, either in direct terms or in principle, of numerous other carefully considered

Patterson v. Commonwealth, 11 Bush, 311 (21 Am. R. 220); State v. Telephone Co., 36 Ohio St. 296 (38 Am. R. 583, and note); Jordan v. Dayton, 4 Ohio, 295; Fry v. State, 63 Ind.552; People v. Russell, 49 Mich. 618 (43 Am. R. 478); Thompson v. Staats, 15 Wend. 395; Martinetti v. Maguire, Deady, 216; Vannini v. Paine, 1 Harrington, 65; License Tax Cases, 5 Wall. 462; United States v. De Witt, 9 Wall. 41; Railroad Co. v. Husen, 95 U. S. 465; Beer Co. v. Massachusetts, 97 U. S. 25; Brechbill v. Randall, 102 Ind. 528 (52 Am. R. 695); Palmer v. State, 39 Ohio St. 236 (48 Am. R. 429); Western U. Tel. Co. v. Pendleton, 95 Ind. 12 (48 Am. R. 692); New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650.

cases.

were

while, therefore, it is true that letters patent

confer upon the patentee a monopoly to the extent of vesting in him, his heirs and assigns, the exclusive right to make, use and vend the tangible property brought into existence by a practical application of the discovery covered by the letters patent, for a limited time, it is not true that such exclusive right authorizes the making, using or vending of such tangible property in a manner which would be unlawful except for such letters patent, and independently of State legislation and State control.

It is next contended that the Central Union Telephone Company was organized, and has so far been conducted as an ordinary business investment, and is in its methods, as well as in its relations to its patrons and subscribers, a merely private enterprise, no more subject to legislative control than any other private business with which a considerable number of persons have become either directly or indirectly connected; that conse

quently the act of the legislature, under which is such regulation and control an interference with this prosecution was instituted, is inoperative and the guaranteed rights of the citizen in private void as a restraint upon the company in its charges property. As bearing generally upon the subjects for the rental and use of its instruments.

lastly above referred to, see, also, the cases of The telephone is one of the remarkable produc

Chicago, etc., R. R. Co. v. Iowa, 94 U. S. 155; tions of the present century, and, although its

Chicago, etc., R. R. Co. v. Ackley, 94 U. S. 179; discovery is of recent date, it has been in use long

Winona, etc. R. R. Co. y. Blake, 94 U. S. 180; enough to have attained well defined relations to

Railroad Co. v. Richmond, 96 U. S. 521; Railroad the general public. It has become as much a mat

Co. v. Fuller, 17 Wall. 560; Olcott v. Supervisors, ter of public convenience and of public necessity 16 Wall. 678; Ruggles v. Illinois, 108 U. S. 526; as were the stage coach and sailing vessel a hun

Spring Valley Water Works v. Schottler, 110 U. dred years ago, or as the steamboat, the railroad

S. 347; Ruggles V. People, 91 Ill. 256; Illinois and the telegraph have become in later years. It

Central R. R. Co. v. People, 108 U. S. 541; s. C., has already become an important instrument of

1 A. & E. R. R. Cas. 188; Allnut v. Inglis, 12 commerce. No other known device can supply

East, 527; Mayor, etc. of Mobile v. Yuille, 3 Ala. the extraordinary facilities which it affords. It

137; N. J. Steam Nav. Co. v. Merchants’ Bank, 6 may, therefore, be regarded, when relatively con

How. 343; Bolt v. Stennett, 8 T. R. 606; Com. v. sidered, as an indispensable instrument of com

Duane, 98 Mass. 1; Com. v. Tewsbury, 11 Met. 55; merce. The relations which it has assumed to

Com. v. Alger, 7 Cush. 53; Metropolitan Board v. wards the public make it a common carrier of

Barrie, 34 N. Y. 657; Slaughter-House Cases, 16 news, a common carrier in the sense in which the

Wall. 36; Sharpless v. Mayor, etc., 21 Pa. St. 147; telegraph is a common carrier, and impose upon

Grant v. Courter, 34 Barb. 232; Bartemeyer v. it certain well defined obligations of a public Iowa, 18 Wall. 129; Beer Co. v. Mass., supra; Ogcharacter. All the instruments and appliances

den v. Saunders, 12 Wheat. 212;Standard Oil Co. used by a telephone company in the prosecution

v. Combs, 96 Ind. 179 (49 Am. R. 156); Western

U. Tel. Co. v. Pendleton, supra; Indianapolis, etc. of its business are consequently, in legal contem

R. R. Co. v. Kercheval, 16 Ind. 84; Foster v. Kanplation, devoted to a public use. State, ex rel. v. Nebraska Telephone Co., 22 N. W. Rep. 237; 22

sas, 112 U. S. 201; Brechbill v. Randall, 102 Ind. Cent. Law Jour. 33; State of Missouri v. Bell Tel

528; Fry v. State, supra; Toledo Agr'l Works v. ephone Co., 23 Fed. Rep. 539; State v. Telephone

Work, 70 Ind. 253; West Virginia, etc. Co. v. VolCo., supra; American Rapid Tel. Co. v. Connecti

canic Oil Co., 5 W. Va. 382; State v. Perry, 5 cut Telephone Co., 44 Am. R. 237, n.

Jones L. 252; Attorney General v. Railroad Com

panies, 35 Wis. 425. It is now a well settled legal proposition that property thus devoted to a public use becomes a The obvious deduction from what has been said, legitimate subject of legislative regulation and

as well as from the authorities cited, is, that the control. In recognition of that doctrine the case

power of a State legislature to prescribe the maxof Munn y. Illinois, 94 U. S. 113, has become a

imum charges which a telephone company may leading case.

make for services rendered, facilities afforded, or It was, in general terms, held in that case, that

articles of property furnished for use in its busiwhen the owner of property devotes it to a use in

ness, is plenary and complete. which the public has an interest, he in effect It was made to appear by the evidence that grants to the public an interest in such use, and there are several instruments more or less in use must, to the extent of that interest, submit to be by telephone companies, each known as a "telecontrolled by the public, for the common good, as phone," one as the band telephone, another as the long as he maintains the use to which he has so box telephone, a third as the switchman's head devoted his property, and that he can only escape telephone, and the fourth as the battery transmitsuch public control by withdrawing his grant and ting telephone; that the first, known also as the discontinuing the use. In support of that con Bell hand or magneto telephone, consists of a bar clusion, the court said it has been customary in magnet with a helix of wire at one end, a diaEngland from time immemorial, and in this coun phragm suitably mounted in front of the helix, try from its first colonization, to regulate ferries, and a hard rubber case supporting the whole, with common carriers, hackmen, bakers, millers, combined poles for making connection with a wharfingers, innkeepers, and the like, and, in so cord from twenty-four to thirty inches long, and doing, to fix a maximum of charges to be made through it with a magneto bell; that this telefor services rendered, accommodations extended phone will both transmit and receive sounds or and articles sold. This case has been the subject words carried electrically over a connecting wire; of much unfriendly comment and has encountered that this instrument was at first, with the assistsome very sharp criticism, but its authority as a ance only of the magneto or call bell, used in precedent remains unshaken.

transmitting as well as in receiving telephonic This State regulation and control of property messages; that some time after this Bell band teldevoted to a public use is not the taking of prop ephone had thus come into use, the battery transerty for a public purpose within the meaning of $ mitting telephone, known as the Blake transmitter, 21 of art. 1 of the Constitution of this State. Nor was introduced and generally accepted as a very

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decided improvement in the transmission of words of its patrons and subscribers, entitled "Indianap-
and sounds over wires used by telephone com- olis Telephone Directory," in which those having
panies, words and sounds being transmitted the use of its telephonic instruments were in-
through it in a louder tone and with greater effect structed as follows:
than through the Bell hand telephone; that for “Call by numbers.
some time previous to the 13th day of April, 1885,

“When through talking ring out.
this Blake transmitter had come into general use

“Make all complaints to the chief operatorin the transmission of messages with that class of

call No. 1,000. patrons and subscribers who desired the best avail

“Help each other by answering your telephone able telephonic service; that since the Blake trans

promptly. mitter had come into general use as stated the Bell

“Do not allow non-subscribers to use your telehand telephone had been chiefly used as a receiv

phone. It is unjust to other subscribers, impedes, er for messages, only a comparatively few persons

the service, and is a violation of your contract.' continuing to use it also for transmitting purposes ; These were a substantial repetition of instructhat, on the day last named, and for a considera

tions issued by the Western Telephone Company, ble time previously, a fully equipped organization

one of the predecessors of the Central Unior Telefor the convenient and ready transmission and re

phone Company, in June, 1883. It these instrucception of messages over telephonic wires, con

tions the “telephone" is plainly referred to as an sisted, as it still consists, of a Bell hand telephone

organized apparatus--an institution-and not as a and cord, a Blake transmitter, a magneto or call

single instrument. In this use of the word “telebell, a cell of battery, a backboard and a battery

phone,” the telephone companies in question simbox; that the instruments thus constituting a tel- ply adopted and emphasized what had already ephonic equipment have been and still are only

been generally accepted as the proper meaning of rented by telephone companies to their patrons

that word in the connection in which it was so and subscribers, the latter not being allowed to

used by them. either purchase or own any of such instruments.

Before the great discovery of Prof. Morse, in Upon the facts thus disclosed by the evidence, telegraphy, the power of electricity to give a sudit is, in the third place, contended that the act of den and mysterious impulse to a suspended wire April 13, 1885, under consideration, only limits was well understood among those most familiar the price to be charged to three dollars per month with experiments in electrical science. His diswhen one instrument, known as a telephone, is covery consisted in the invention of an instrument, rented to a patron or subscriber, and does not ap- or machine, which utilized the power of electricity, ply to a case like the one before us, where two in- and thereby enabled him to send intelligible messtruments, each answering to that name, are, for sages over suspended wires to remotely distant his greater convenie ce, rented

the same person places. When that instrument, or machine, first to be used together, and that consequently, the came into use, the word “telegraph” was underfacts of this case do not bring it within the penal stood to more particularly refer to it as the thing provisions of that act.

best known by that name; but since that time a In a general sense, the name “telephone” ap

much wider and more comprehensive meaning plies to any instrument or apparatus which trans

has been attached to that word. mits sound beyond the limits of ordinary audibil- The “telegraph” is now usually accepted, and ity. The speaking tube used in conveying the in common parlance is generally understood, as sound of the voice from one room to another in referring to the entire system of appliances used large buildings, or a stretched cord or wire at- in the transmission of telegraphic messages by tached to vibrating membranes or discs, by which electricity, consisting of: First. A battery or the voice is carried to a distant point, is strictly other source of electric power; Secondly. Of a speaking, a telephone. Bnt since the recent dis- line-wire or conductor for conveying the electric coveries in telephony, the name is technically and current from one station to another; Thirdly. Of primarily restricted to an instrument or device the apparatus for transmitting, interrupting, and, which transmits sound by means of electricity and if necessary, reversing the electric current at wires similar to telegraphic wires. In a secondary pleasure; and Fourthly. Of the indicator or sigsense, however, being the sense in which it is most nalizing instrument. See Imperial Dictionery, title commonly understood, the word "telephone” con- “Telegraph." stitutes a generic term, having reference generally In the respect indicated, the varying meanings to the art of telephony as an institution, but more of the word “telephone” are analogous to those particularly to the apparatus, as an entirety, or- applied to the word “telegraph,” there being very dinarily used in the transmission, as well as in the much in common between the two systems of telereception, of telephonic messages. In this latter phony and telegraphy. In reaching a conclusion sense, the Central Union Telephone Company, in as to what is generally understood by the use of behalf of which the appellant stands as the repre- the word "telephone,” we have been governed sentative in this proceeding, has very significantly partly by the information judicially within our sanctioned the use of the word "telephone."

reach, and other respects by the evidence. The In August, 1885, it published a book for the use word having become a term of art, evidence was

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