in his residence. From order refusing the writ, petitioner appeals.

*

McIVER, C. J. The undisputed facts are that the respondent, in the exercise of its franchise conferred by its charter, had established a telephone business in the city of Spartanburg, and had erected its poles and strung its wires in and along the streets of said city, and thus had become, at least, a quasi-common carrier of news, and as such was under an obligation to serve all alike who applied to it within reasonable limitations, without any discrimination whatsoever. When, therefore, the relator applied to the respondent to replace the telephone instruments in his grocery store and in his residence, from whence they had been removed by the defendant company but a few days before, the respondent was, in our opinion, bound to comply with such demand, under the obligations to the public which it had assumed.

The reason given for its refusal-that the relator refused to agree that he would use respondent's telephone system exclusively-was not sufficient to relieve it from its obligation to serve the public, of which the relator was one, without any discrimination whatsoever; and especially is this so when it was admitted that the respondent was, at the time, affording to one person, at least, who was engaged in the same business as that of the relator, whose place of business was on the same street of the same city, the same facilities which the relator demanded, without requiring any such stipulation as that required of the relator, but who was, in fact, using both telephone systems. It seems to us that the respondent, after offering to the public its telephone system for the transmission of news, would have no more right to refuse to furnish the relator its facilities for the transmission of news unless he would agree not to use the Bell Telephone system in operation in the same city, but use exclusively respondent's system, than a railway company would have to refuse to transport the goods of a shipper, unless such shipper would agree to patronize its line exclusively and not give any of its business to any competing railway line.

Nor does the fact (if fact it be) that the relator had committed a breach of his previous contract with respondent, when he purchased Holland's market, in which an instrument of the

Bell Telephone Company had been placed, and had thereby acquired the right to use the Bell Telephone, afford any reason why the respondent should decline to comply with relator's demand to furnish his grocery store and residence with its telephone instruments. If the relator had committed any breach of his previous contract with the respondent of which the latter had any legal right to complain, its remedy, as was said in one of the cases which we have consulted, was by an action to recover damages for such breach of contract, but not by refusing to perform its obligation to the public, of which the relator was one. As to the other reason suggested why the mandamus prayed for should not issue under the circumstances of this case, to wit: that respondent did not have the means to comply with the demand of the relator within less than sixty days, it is only necessary to repeat what we have said above: that there does not appear to be any evidence in the "Case" to sustain the fact upon which this suggestion is based, and, therefore, it cannot now be considered. Besides, as is said above, that is a matter which may be considered when the case goes back to the Circuit Court, which can, in ordering the mandamus to issue, as herein directed, make suitable provision for allowing respondent reasonable time, if such shall be shown to be necessary, to comply with the relator's demand.

Economic Limitations Creating Public Employment.

THE INTER-OCEAN PUBLISHING CO. v. THE ASSO

CIATED PRESS.

184 Ill. 438, 56 N. E. 822. 1900.

Bill in Equity brought to restrain the Associated Press from enforcing against the Inter-Ocean Publishing Company the by-law providing that no one receiving the service of this press association should take news service from any other bureau. Judgment for the complainant in the Supreme Court reversing decisions in the lower courts dismissing the bill for want of equity.

PHILLIPS, J.

The organization of such a method of gathering information and news from so wide an extent of

territory as is done by the appellee corporation, and the dissemination of that news, require the expenditure of vast sums of money. It reaches out to the various parts of the United States, where its agents gather news which is wired to it, and through it such news is received by the various important newspapers of the country. Scarcely any newspaper could organize and conduct the means of gathering the information that is centered in an association of the character of the appellee because of the enormous expense, and no paper could be regarded as a newspaper of the day unless it had access to and published the reports from such an association as appellee. For news gathered from all parts of the country the various newspapers are almost solely dependent on such an association, and if they are prohibited from publishing it or its use is refused to them, their character as newspapers is destroyed and they would soon become practically worthless publications. The Associated Press, from the time of its organization and establishment in business, sold its news reports to various newspapers who became members, and the publication of that news became of vast importance to the public, so that public interest is attached to the dissemination of that news. The manner in which that corporation has used its franchise has charged its business with a public interest. It has devoted its property to a public use, and has, in effect, granted to the public such an interest in its use that it must submit to be controlled by the public for the common good, to the extent of the interest it has thus created in the public in its private property. The sole purpose for which news was gathered was that the same should be sold, and all newspaper publishers desiring to purchase such news for publication are entitled to purchase the same without discrimination against them.

The declaration stated, that the defendant agreed to carry 100 cases of figs from a wharf to a ship, and that by the negligence of the defendant's servants the figs were lost. Plea: non assumpsit.

It was proved that, on the 14th of February, 1850, the defendant was employed by the plaintiffs, who are merchants, to take 100 cases of figs in his lighter from Mills' Wharf, in Thames Street, to the "Magnet" steamer, which lay in the River Thames, and that as the figs were on board the lighter, which was proceeding with them to the "Magnet," the lighter was run down by the "Menai" steamer and the figs all lost. It was proved that the defendant had a counting-house with his name and the word "lighterman" on the doorposts of it, and that he carried goods in his lighters from the wharves to the ships for anybody who employed him, and that the defendant was a lighterman and not a wharfinger.

ALDERSON, B. Everybody who undertakes to carry for any one who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a man holds himself out to do it for every one who asks him, he is a common carrier; but if he does not do it for every one, but carries for you and me only, that is matter of special contract. Here we have a person with a countinghouse, "lighterman" painted at his door, and he offers to carry for every one.

NICHOLAS, J. Robertson & Co. sued Kennedy, in case, for the loss of a hogshead of sugar, which he, as a common carrier, had undertaken, for a reasonable compensation, to carry from the bank of the river, to their store in Brandenburgh.

On the trial, plaintiffs introduced proof conducing to show that defendant had been in the habit of hauling for hire, in the town of Brandenburgh, for every one who applied to him, with an ox team, driven by his slave; that he had undertaken to haul for plaintiffs the hogshead in question, and that, after defendant's slave had placed the hogshead on a slide, for the purpose of hauling it to plaintiff's store in Brandenburgh, the slide and hogshead slipped into the river, whereby the sugar was spoiled. They then moved the court to instruct the jury, in substance, that if they believed this proof the defendant was responsible for the loss of the sugar, unless it had occurred from inevitable accident, or the act of God. This instruction the court refused to give; but instructed the jury that defendant was responsible, if the sugar was lost through negligence, or from want of reasonable care.

The law is as contended for by the plaintiffs. Every one who pursues the business of transporting goods for hire, for the public generally, is a common carrier. According to the most approved definition, a common carrier is one who undertakes, for hire or reward, to transport the goods of all such as choose to employ him, from place to place. Draymen, cartmen and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So also does the driver of a slide with an ox team. The mode of transporting is immaterial. The law imposes upon a common carrier the responsibility of an insurer, which requires a safe delivery at all events, unless prevented by public enemies, or such inevitable accident as lightning, tempests and the like, which are usually termed the acts of God.

The court erred in refusing the second instruction asked by the plaintiffs.