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over a like ordinance passed by the common council of Boston regulating the right to speak on the Boston Common. The question was over the right to preach the gospel at certain times according to immemorial usage. The court sustained the validity of the ordinance. Commonwealth v. Davis, 162 Mass. 510, 39 N. E. Rep. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389. This case was affirmed in Davis v. Massachusetts, 167 U. S. 526, where the court said: "It is argued that Boston Common is the property of the inhabitants of the city of Boston, and dedicated to the use of the people of that city and the public in many ways, and the preaching of the gospel there has been from times immemorial to a recent period, one of these way. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes, the legislature may end the right of the public to enter upon the public place by put

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ting an end to the dedication to public places. So it may take the less step of limiting the public use to certain purposes. See Dill. Mun. Corp §§ 393, 407, 651, 656, 666; Commissioners v. Armstrong, 45 N. Y. 234, 243, 244, 6 Am. Rep. 70. It is therefore conclusively determined there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The fourteenth amendment to the constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U.S.27, 31,5 Sup. Ct. Rep. 357, 28 L. Ed. 923; Railway Co. v. Beckwith, 129 U. S. 26, 29, 9 Sup. Ct. Rep. 207, 32 L. Ed. 585; Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. Rep. 721, 37 L. Ed. 599; Jones v. Brim, 165 U. . 180, 182, 17 Sup. Ct. Rep. 282, 41 L. Ed. 677), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state."

JOINT OR SEVERABLE LIABILITY OF MASTER AND SERVANT FOR NEGLIGENCE AS AFFECTING REMOVAL OF CAUSES.

Relative to the removal of causes from state

to federal courts on the ground of diversity of citizenship, the law is well settled that, to sustain such removal, the citizenship of all the defendants must be diverse from that of all the plaintiffs. It follows that in a case in which no federal question is involved, and

1 Removal Cases, 100 U. S. 457; Blake v. McKim, 103 U. S. 336; Tracy v. Morel, 88 Fed. Rep. 801; Moore v. Los Angeles I. & S. Co., 89 Fed. Rep. 78.

the controversy is not separable, removal will be prevented by the joinder of a defendant whose citizenship is the same as that of the plaintiff, providing the defendant so joined is a real and genuine party, and not nominal, sham or fraudulent. Ordinarily, the plaintiff desires to have the suit tried in the state court, the court of his choice, and the cases based on alleged negligence are not uncommon in which one or more servants of the same state as the plaintiff are made defendants, and the right of a defending master, corporation or individual of another state, to have the case removed to the federal court, is thus defeated or at least put in question. The plaintiff has the privilege of joining a servant as defendant in such a case, even if the sole purpose or motive in the joinder is to prevent removal, providing, of course, that the servant is otherwise a proper party. The defending master is, as a rule, desirous of having the case removed, and in a petition therefor customarily alleges that the servant is an improper, sham or fraudu. lent party, and that the controversy is separable as to the master and servant. These petitions to remove, the sufficiency of which, when they are in proper form, is usually passed upon in the federal courts on motions to remand, have occasioned numerous judicial findings that are in conflict, and in fact in direct opposition, upon the question as to whether the liability of master and servant for negligence is joint or several. The question is important because it determines the removability of the case. If the liability is joint, no federal question being involved, the case cannot be removed; otherwise, if the liability is severable, in which case any defendant can remove. On a motion to remand the case is to be dealt with as it is made out by the pleadings at the time the petition for removal is filed, the allegations of the plaintiff's bill, declaration or complaint being taken, for the purposes of the inquiry, as confessed, and their truth or the sufficiency of the pleading being in nowise considered. It has been determined by un

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2 Deere, Wells & Co. v. C., M. & St. P. Ry. Co., 85 Fed. Rep. 876; Charman v. Lake Erie & W. R. Co., 105 Fed. Rep. 449.

3 C., etc. Ry. Co. v. Martin, 178 U. S. 245, 59 Kan. 487.

4 Louisville, etc. R. Co. v. Wangelin, 132 U. S. 603; East Tenn. Railroad v. Grayson, 119 U. S. 240; Graves

questionable authority that where a plaintiff in his allegations charges several defendants as joint trespassers or tort-fessors, the filing of separate answers by several defendants so sued jointly on an alleged joint cause of action in tort, in which answers each defendant avers that he acted separately on his own account, and not jointly in the acts complained of, does not divide the suit into separate controversies so as to make it removable into the circuit court of the United States. Accordingly, in cases where master and servant are joined as defendants, the federal courts, on motions to remand or on appeal from the state supreme court, do not consider the motive of the plaintiff in joining the servant nor the allegations of the defendants in their answers, but they pass upon the merits of the case made out by the plaintiff's pleadings, and determine therefrom whether the liability of the defendants is joint or severable.

The question was carefully considered by Taft, circuit judge, in the case of Warax v. Railway Co., in which case the plaintiff sued both the railway company and the engineer, charging that the train was negligently started when the plaintiff, a switchman, was between the cars, and the engineer knew, or ought to have known, that the plaintiff was there. After commenting upon the disagreement of authorities on the question whether master and servant can be joined as the perpetrators of a joint tort without the presence of the master and without his express direction, the learned judge delivered a strong opinion holding that the liability of the master is based on the ground of public policy which holds him responsible for the acts of his employees, while the liability of the servv. Corbin, 132 U. S. 571; Hax v. Casper, 31 Fed. Rep. 499; Barney v. Latham, 103 U. S. 205; Walker v. Collins, 167 U. S. 57.

5 Sloane v. Anderson, 117 U. S. 275; C. & O. Ry. Co. v. Dixon, 179 U. S. 131; Pirie v. Tvedt, 115 U. S. 41; Louisville & N. R. Co. v. Ide, 114 U. S. 52; Powers v. C. & O. Ry., 169 U. S. 97; Hyde v. Ruble, 104 U. S. 407; Ayres v. Wiswall, 112 U. S. 187; Little y. Giles, 118 U. S. 600; Louisville & N. R. v. Wangelin, 132 U. S. 599; Torrence v. Shedd, 144 U. S. 527; Connell v. Smiley, 156 U. S. 335; Chicago, R. I., etc. Ry. Co. v. Martin, 178 U. S. 245; Arrowsmith v. Nashville & D. R. Co., 57 Fed. Rep. 165; Foster's Federal Practice (3d Ed.), sec. 384; Putnam v. Ingraham, 114 U. S. 57. 672 Fed. Rep. 637 (1896), adopted and reaffirmed in Hukill v. Mayville & B. S. R. Co., 72 Fed. Rep. 745, in which case Larten, circuit judge, sat with Taft, circuit judge.

ant arises wholly because of his personal act in doing the wrong, and that liabilities created on two such wholly different grounds cannot, and ought not to be, joint. He says: "On principle we have no hesitation in taking the view so logically upheld by the Massachusetts courts, and in deciding that a suit against a principal and the agent for the mere negligence of the agent in the absence of the principal is a misjoinder, and that the causes of action are not joint but several."

A case came before Shiras, district judge, in which the plantiff had brought suit against a railroad company and a foreman charging them jointly with setting out a fire and negligently permitting it to spread to plaintiff's land, and in the opinion the reasoning of the Warax case was approved, in so far as it maintained that the plaintiff did not make the defendants jointly liable by relying on two grounds of legal liability, but it was distinctly and unequivocally held that the case under consideration disclosed no separable controversy; that the acts charged were one; that there was one cause of action and the defendants could be sued jointly; that each was chargeable with watching the one fire set for the one purpose, and that the foreman was not a nominal or sham party merely because he was pecuniarily irresponsible.8 While the doctrine of the Warax case is thus plainly disputed that of the Plymouth Gold Mining Co. v. A. & S. Canal Co.9 is adopted, wherein it was held that the wrongful pollution of water, with which the defendants were charged, presented a single cause of action and did not constitute a separable controversy, although the defendants swered separately and set up that the acts complained of were committed under the direction of one of the defendants. In

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In the opinion are cited cases some of which favor and some of which oppose the general proposition, that master and servant or principal and agent can be joined as defendants in an action for a tort. Citations on both sides of the question are given in 15 Ency. Pl. & Prac. 560, 561. See also in this connection Rivers v. Bradley, 53 Fed. Rep. 305; Nelson v. Hennessey, 33 Fed. Rep. 113; Beuttel v. Ry. Co., 26 Fed. Rep. 50; Fergason v. Ry. Co., 63 Fed. Rep. 177. 8 Deere, Wells & Co. v. C., M. & St. P. Ry. Co., 85 Fed. Rep. 876. For a list of cases holding that master and servant are properly joined as defendants in a negligence case, see Charman v. Lake Erie & W. R. Co., 105 Fed. Rep. 449, 454; Dow v. Bradstreet Co., 46 Fed. Rep. 824.

9 118 U. S. 264.

Doremus v. Root 10 the defendant Root was joined with his employer and Hanford, district judge, held that while the obligations of the defendants rested on different grounds, and they were not therefore jointly liable, still the case should be remanded in conformity with the opinion in the case of Powers v. Railway Co.," wherein the doctrine is maintained that an action of tort contains no separable controversy which will authorize its removal merely for the reason that the defendants file separate answers and set up different defenses. In Doremus v. Root the following principles are laid down as established by the previous decisions of the federal courts: (1) in this class of cases the law of torts must govern and the plaintiff may join several as defendants; (2) the defendants cannot divide the cause so as to present a separate controversy and make several lawsuits in the place of one; (3) the plaintiff's complaint or declaration determines the nature of the case, and the defendants cannot change the same by introducing new matters; (4) it cannot be assumed that either defendant is the real party and the other sham or fraudulent, but if fraud is alleged it must be proved.

A comparatively recent case brought this question before the Supreme Court of the United States, and in an opinion written by Chief Justice Fuller, two justices dissenting, it is held12 that where suit is brought against a railroad company and two servants the controversy is not separable and the state court did not err in retaining jurisdiction. The averments of the complaint are discussed in view of the claim by the defendants, that neither direct nor concurrent nor concerted action on their part was charged, and the conclusion is reached that it was not necessary for the pleader to set forth the specific acts of negligence complained of, and that it was sufficient to aver that the negligence was the joint negligence of all the defendants. It is distinctly held that where concurrent negligence is charged the controversy is not separable. Thus, after much conflict and uncertainty in decisions, definite and final authority is given for the doctrine that the liability of master and servant for negligence

10 94 Fed. Rep. 760.

11 169 U. S. 92 (1899).

12 C. & O. Ry. v. Dixon, 179 U. S. 131.

is not separable in the sense that a removal to the federal eourt is allowable on account of their joinder as defendants. Examination of the decisions on the subject shows, that a great part of the confusion arose from the credit accorded the argument, that the master and servant are liable on different grounds, the master on the ground of public policy, in that he is liable for the acts of his agent and the servant on account of his wrongful participation in the wrongful act; that they do not act jointly; that the master is not even present at the commission of the tort, and if he were would not sanction any wrongdoing on the part of the servant; that liability based on such diverse grounds or causes is not joint, and consequently where the defendant's answer separately the controversy is separable. This argument, forceful as it may appear, is not conclusive. It leaves out of consideration the idea of concurrence in a tort and proceeds on the erroneous presumption that a master, for instance a corporation, must be in the company of a servant in order that their negligent acts may concur. In order that two or more defendants may all be liable for a tort, it is not necessary that they act in unison. A railroad collision occurs and two or more companies may be at fault, and, therefore, liable, although they acted in no respect together or jointly. They could be joined as defendants and no one would argue that the controversy was separable so as to allow removal. The case of master and servant is the same. They may not act together and still both be liable, their respective acts of negligence concurring in causing the injuries complained of. This is the controlling consideration: a separable controversy is inconsistent with concurrent negligence. A plaintiff is not compelled to bring as many suits as there are parties whom he believes are liable. He could not get justice were he obliged so to do. He is privileged to join several defendants whether they acted together or separately, and as a rule the same evidence and the same trial will dispose of the case as to all defendants. In fact the plaintiff might not be able to try the case as to one defendant without the presence of the others as parties or witnesses. The act relating to separable controversies reads, "there shall be a controversy which is wholly

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is submitted that an action brought to recover for injuries caused by the concurrent negligence of several parties cannot be fully determined between the plaintiff and one of those parties.

Whatever the reasoning by which the result has been reached, the great weight of present authority is that the liability of master and servant for negligence is not separable, and the plaintiff may prevent the removal of his case to the federal court by joining as defendant a servant who is a citizen of plaintiff's state. As the authorities herein quoted and cited show, the motive of the plaintiff in joining such a defendant is immaterial. If the declaration or complaint shows that the servant is a proper party, the state court has a right to retain jurisdiction of the case or, if the case is removed, the federal court is bound by prevailing authorities to remand it on proper motion. Should the plaintiff discontinue the suit as to the servant or servants who are citizens of the plaintiff's state, it is the privilege of a citizen of another state who is defending, when the case is thus made removable, to file a petition to remove immediately before taking any other steps in defense; 13 but if the plaintiff insists on prosecuting the suit on the joint cause of action set out in the complaint against all the defendants, he is not compelled to sustain his allegations as to the liability of the defendants of his own state in order to prevent removal.14

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Court of Appeals, Missouri, March 18, 1902.

1. A telephone company sustains such relations to the citizens of the territory in which it operates that it is bound to enter into a contract with a citizen to furnish him private service when requested and accompanied with an offer to pay the usual charge in advance; and where an instrument has been removed, and the customer is solvent, and it is fairly doubtful if any back rent is due, or the subscriber has paid for all the actual former service rendered, it cannot exact as a condition that it be made whole for back rent claimed and the cost of the reinstallation; and the fact that it maintains public toll stations for the use

of the general public would not justify its refusal to furnish service.

2. When a telephone company unjustly refuses to furnish a customer with service, mandamus will lie to compel it to do so.

GOODE, J.: An alternative writ of mandamus was issued at the instance of appellants commanding the respondent to rent to the appellants a telephone instrument, and place the same, together with the usual appurtenances, in their building, connect it with the wires of the respondent's telephone system, and so maintain it as to afford the plaintiffs the customary facilities for receiving and transmitting messages over the wires of the respondent throughout the city of St. Louis, or show cause to the contrary. In March, 1900, a contract was made by the parties, under which appellants subscribed for an instrument to be placed in their business quarters. Appellants paid the hire of the telephone for which they subscribed until the 1st day of October, 1900, it seems, or two quarters. It worked badly, and messages could not be received or transmitted over it satisfactorily. Appellants complained of its defects from time to time, and attempts were made to put it in good working order, but without success, until about the 15th day of December. In the meanwhile appellants became so dissatisfied with the appliance, and tired of waiting for it to be adjusted properly, that they notified the respondent on the 31st day of August—that is, a month before the expiration of the time for which they had paid, to remove it. Respondent disregarded several notices of this kind, and on the 15th day of December the instrument was finally adjusted so that it rendered good service, and the appellants were willing and desired to retain the use of it, and so notified the

respondent, tendering them on the 3d day of January the sum of $15 for the quarter next ensuing and offering to pay them $5 for the service during the time the instrument had been efficient prior to said date. Respondent demanded pay for the entire time the instrument had been in appellants' house, regardless of whether it worked or not, that is, insisted on being paid for the time from October 1st to December 15th,—though there was no evidence tending to prove the telephone was of any use to the appellants during that interval. In spite of said tender and appellants' notification that they wished to retain the instrument after it became efficient, respondent removed it on the 4th day of January, 1901, and has since that time refused to restore it unless paid for all the time it was in the building at the usual rates. The claim is put forward that one rule of the company is not to reinstate a telephone which has been removed for non-payment of rent until all back payments have been made and the cost of reinstallation, amounting to $17, also paid in advance (although the latter item was waived by the manager or superintendent of the company in this instance). The alleged rule in regard to when an instrument will be restored

to a subscriber or reinstated on his premises is not among any of the printed rules of the com. pany furnished to subscribers, nor is it in the form of a printed rule at all, nor was it communicated to appellants when they made the contract with the respondent, or ever communicated to them until they demanded a continuance of service by the respondent.

The facts in this case are undisputed, the precise issue being whether or not the respondent is bound to install a telephone on the appellants' premises on their demand and tender of one quarter's rent in advance, plus the unpaid rent for the time they enjoyed good service by the other telephone; and whether, if there is an obligation of that kind on the respondent, it may be enforced by this remedy. Such a controversy might often turn somewhat on the regulations of the telephone company, its contracts with customers, and the behavior of the latter while using the telephone system. But, aside from the specral circumstances that may arise in any case, a larger question is raised by the return to the alternative writ of mandamus in the present one, namely, whether the respondent, or any other telephone company, sustains such a relation to the citizens of the territory in which it operates its system that it is bound to enter into a contract with a citizen to furnish him telephonic facilities when requested and accompanied with an offer to pay the usual charge in advance. Notwithstanding the recency of the use of telephone communication as an aid to the transaction of social and commercial affairs, that use has increased with so much rapidity, and has become so widespread, that this question has been already presented to and passed on by the courts several times, and passed on, too, without much doubt, or difficulty; for the principle involved and to be applied to the solution of the question was well settled. Telephone companies have been held from the first to be common carriers in the sense that they are bound to furnish service to any one offering to comply with their reasonable requirements, not only in respect to their public stations system, but also as to the so-called private system of instruments installed in offices, residences, and places of business. State v. Bell Tel. Co. (C. C.), 23 Fed. Rep. 539; State v. Delaware & A. Telegraph & Telephone Co. (C. C.), 47 Fed. Rep. 683; State v. Bell Tel. Co., 36 Ohio St. 296, 38 Am. Rep. 583; Chesapeake & P. Tel. Co. v. Baltimore & O. Tel. Co., 66 Md. 399, 7 Atl. Rep. 809, 59 Am. Rep. 167; Bell Tel. Co. v. Commonwealth (Pa. Sup.), 3 Atl. Rep. 825; Hockett v. State, 105 Ind. 250, 5 N. E. Rep. 201; Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. Rep. 721; Central Union Tel. Co. v. State, 118 Ind. 194, 19 N. E. Rep. 604, 10 Am. St. Rep. 114; Same v. State, 123 Ind. 113, 24 N. E. Rep. 215; State v. Bell Tel. Co., 22 Alb. Law J. 363; State v. Nebraska Tel. Co., 17 Neb. 126, 22 N. W. Rep. 237, 52 Am. Rep. 404. In the cases above named the duty of an incorporated company operating a telephone system in a cer

tain locality to treat all citizens of that locality alike, and to give them all equal privileges in regard to the use of the system by entering into contracts with them and installing instruments on their premises, is recognized and upheld, as well as the power of the courts to compel the observance of this duty by a writ of mandamus. Some of the decisions are founded on statutes more or less positively prescribing the duty, and others on the common-law rule that a common carrier, or other company or person holding itself out as ready to serve the public at large in some business intimately and essentially associated with the general social and business life of the community (especially if such person or company is operating under or enjoys some advantage or franchise from the state), is bound to serve every member of the community without discrimination or partiality; and some of the decisions which are supported by a statute declare the power to enforce the obligation would exist, if there was no statute, by virtue of the principles of the common law, of which the statute is said to be declaratory. Telephone Co. v. Bradbury, supra. The duty thus imposed on telephone companies is in no sense novel, nor did its application to them involve a new principle; for their business plainly falls, by its very nature, within the class of quasi public employments, as to which the courts have never hesitated to restrict in some measure the right of contract for the common welfare and upon considerations of public policy. Telegraph and telephone companies are regarded by the courts as performing functions similar to those of railway, steamboat, and express companies, which conduct a general carrying business, and have always been subject to government supervision and regulation exercised both by legislation and judicial decisions. Vincent v. Railroad Co., 49 Ill. 33; Buffalo E. S. R. Co. v. Buffalo St. R. Co., 111 N. Y. 132, 19 N. E. Rep. 63, 2 L. R. A. 284. Indeed, the same abridgment of the right of contract is applied to other persons or corporations than carriers, if engaged in employments of a public character, such as innkeepers, warehousemen, mills, bakers, gas and water companies, and perhaps still others. Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; People v. Budd, 117 N. Y. 1, 22 N. E. Rep. 670, 682, 5 L. R. A. 559, 15 Am. St. Rep. 460; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. Rep. 468, 36 L. Ed. 247; American Waterworks Co. v. State, 46 Neb. 194, 64 N. W. Rep. 711, 30 L. R. A. 447, 50 Am. St. Rep. 610; Smith v. Telegraph Co., 42 Hun, 454; State v. Joplin Waterworks, 52 Mo. App. 312; Shepard v. Gaslight Co., 6 Wis. 539, 70 Am. Dec. 479; People v. Manhattan Gaslight Co., 45 Barb. 137; Waterworks v. Schottler, 110U. S. 347, 4 Sup. Ct. Rep. 48, 28 L. Ed. 173; Brass v. North Dakota, 153 U. S. 391, 14 Sup. Ct. Rep. 857, 38 L. Ed. 757; Mayor, etc. v. Yuille, 3 Ala. 137, 36 Am. Dec. 441. Most of such cases deal with the constitutionality of statutes passed to regulate and control the conduct of certain em

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