and the power of eminent domain, and among their duties are the following, as prescribed in section 3462, as amended April 15, 1880, namely: "Every company, incorporated or unincorporated, operating a telegraph line in this state, shall receive dispatches from and for other telegraph lines, and from and for any individual; and on payment of its usual charges for transmitting dispatches, as established by the rules and regulations of the company, shall transmit the same with impartiality and good faith, under a penalty of one hundred dollars for each case of neglect or refusal to do so, to be recovered with costs of suit by civil action, in the usual name, and for the benefit of the person or company sending or forwarding, or desiring to send or forward the dispatch."

This section, when construed in connection with section 3471, above quoted, makes it the duty of the Columbus Telephone Company to receive dispatches from and for telegraph lines, by the very words of the statute; but if not, such duty towards the relators and each of them is embraced in the succeeding clause, " and from or for any individual." The word "individual" is here used in the sense of person, and embraces artificial or corporate persons as well as natural. The dispatches so received "from or for," must be transmitted "with impartiality," that is, without discrimination, either in respect to persons or in the time or manner of transmission.

Such being the nature of the duty imposed upon the Columbus Telephone Company by the statute, it cannot shield itself from the performance thereof, by any self-imposed restrictions contained in the stipulations of a contract with the American Bell Telephone Company, by which the right to use the instruments or license of the latter company was acquired. The Columbus Telephone Company was bound to acquire from the American Bell Telephone Company, such rights in its instruments and patent (or to provide itself by other means of all such facilities), as were necessary to discharge its duties to the public, as prescribed in the statute; otherwise, it had no right to engage in the business of operating a system of telephones at all.

We do not mean to say, that as between the Columbus Telephone Company and the American Bell Telephone Company, the right to control the receipt and delivery of telegraph messages might not have been reserved to the latter company; but we do hold, that no such right could be reserved whereby the relators could be deprived of the use of the system of telephones organized and managed by these telephone companies, either jointly or severally.

And in regard to the American Bell Telephone Company, it is enough to say, after what has already been said in relation to the

Columbus Telephone Company, that it cannot be permitted to operate a line or system of telephones, in this state, and in the face of the statute, either directly, or through the agency of licensees, without impartiality, or in other words, with discriminations against any member of the general public who is willing and ready to comply with the conditions imposed upon all other patrons or customers, who are in like circumstances. And all contracts in contravention of the public policy of this state, as declared in chapter 4 of the revised statutes, above referred to, must be declared void. and of no effect.

It is claimed that the statute above referred to cannot control or invalidate the contract in question, because the exclusive right to make, vend, and use these telephone instruments is vested by the assignment of letters patent, under an act of congress, in the American Bell Telephone Company; and that it is not within the power of a state to impair the right so secured. In our opinion, this statute is not the subject of constitutional infirmity.

While it is true, that letters patent secure a monopoly in the thing patented, so that the right to make, vend, or use the same is vested exclusively in the patentee, his heirs and assigns, for a limited period; it is not true, that a right to make, vend, or use the same in a manner which would be unlawful except for the letters patent, thereby becomes lawful, under the act of congress, and beyond the power of the states to regulate or control.

This doctrine is fully discussed and settled in Jordan v. Overseers of Dayton (4 Ohio, 295), and Patterson v. Kentucky (97 U. S. 501). The doctrine of these cases may be stated thus: the right to enjoy a new and useful invention may be secured to the inventor and protected by national authority against all interference; but the use of tangible property which comes into existence by the application of the discovery is not beyond the control of state legislation, simply because the patentee acquires a monopoly in his discovery. "The sole operation of the statute is to enable him to prevent others from using the products of his labors without his consent; but his own right of using is not enlarged or af fected." The property of an inventor in a patented machine, like all other property, remains subject to the paramount claims of society, and the manner of its use may be controlled and regulated by state laws when the public welfare requires it.

It appears to us, as a proposition too plain to admit of argument, that where the beneficial use of patented property, or any species of property, requires public patronage and governmental aid, as, for instance, the use of public ways and the exercise of the right of eminent domain, the state may impose such condi

tions and regulations as in the judgment of the law-making power are necessary to promote the public good.

As respects the Western Union Telegraph Company we are of opinion that no case has been made which will justify a judgment against it; but as to the respondents, the Columbus Telephone Company and the Bell Telephone Company, the writ of mandamus prayed for should be made peremptory. Judgment accordingly.2

NAIRIN v. KENTUCKY HEATING CO.

27 Ky. Law Reporter, 551. 1900.1

ACTION by Robert Nairin against the Kentucky Heating Company for an injunction restraining defendant from turning off plaintiff's supply of gas. On an application for dissolution of the injunction. Application granted.

DU RELLE, J. It will be observed that the only grounds urged in the pleadings in this case for relief by injunction are, stated briefly, the facts that the defendant had natural gas which it was furnishing for heating purposes, and that plaintiff desired the gas for lighting purposes; that defendant had been restrained from furnishing gas for lighting, but that plaintiff was not a party to the proceeding; and that, while defendant was forbidden by the ordinance under which it was permitted to do business to sell gas for lighting purposes, the city which passed the ordinance was not complaining. It might be sufficient to stop here and say that here is no ground stated for relief by injunction. No contract is averred, a violation of which is sought to be prevented—no suggestion of a contract, except the averment that plaintiff applied for a gas connection and got it. There is not even an averment that he made application for a gas connection for lighting purposes. Obviously, unless the defendant be shown to be exercising a public franchise in the vending of gas for lighting purposes, there is no more ground for injunction shown here than if he had sought one to restrain Peaslee, Gaulbert & Co. from refusing to vend oil to him. But the petition on its face shows that, as to the sale of gas for lighting purposes, the defendant was not only not exercising a public franchise, but was, by the ordinance which

2 See in accord, Commercial Un. Tel. Co. v. New England T. & T. Co. (1888), 61 Vt. 241; Chesapeake & P. Tel. Co. v. Baltimore & O. Tel. Co. (1887), 66 Md. 399. But see contra, American Rapid Tel. Co. v. Connecticut Tel. Co. (1881), 49 Conn. 352; People ex rel. Postal T. C. Co. v. Hudson River Tel. Co. (1887), 19 Abbott's New Cases (N. Y.), 466.

See also People ex rel. Oneida Teleph. Co. v. Central N. Y. T. & T. Co. (N. Y., 1899), 41 App. Div. 17.

1 Only an extract from the opinion is reprinted.

ED.

permitted it to do business in Louisville at all, expressly forbidden to sell gas for any other than heating purposes. The plaintiff is therefore in the position of asking an injunction requiring the defendant to violate an ordinance of the city.2

Section 2.

WHO MUST BE SERVED AND EXCUSES FOR FAILURE TO SERVE.

CHIEF JUSTICE MARSHALL IN KISTEN v. HILDEBRAND.

9 B. Monroe, 72. 1848.1

It was laid down in Colyer's case (8 Coke, 32) that common inns were instituted for passengers and wayfaring men. And we think it will be found that the great liability imposed upon them, is for the benefit of travellers and transient persons, who are often compelled to resort to inns for shelter and entertainment, without the means of knowing the character of the host; and without the opportunity of securing themselves against loss or damage to their goods. A common innkeeper is defined to be "a person who makes it his business to entertain travellers and passengers, and provide lodging and necessaries for them and their horses and attendants:" (Bacon's Ab. Inns and Innkeepers, B.; Story on Bailments, Sec. 475). But it has been decided that a man may be an innkeeper, and liable as such, though he have no provision for horses. It is not necessary that he should have a sign indicating that he is an innkeeper, but it must be his business to entertain travellers and passengers.

His duty extends chiefly to the entertaining and harboring of travellers, &c., and therefore, if one who keeps a common inn refuses to receive a traveller, or to find him in victuals, &c., for a reasonable price, (without good excuse, as that his house is full,) he is liable not only to a civil action, but to an indictment. For having taken upon himself a public employment, he must serve the public to the extent of that employment: (Bacon's Ab. Inns and Innkeepers, C. 1.)2

2 See People ea rel. City of Los Angeles v. Los Angeles Indep. Gas Co. (1907), 150 Calif. 557; Omaha Electric L. & P. Co. v. Omaha (1909), 172 Fed. 494.

1 Only an extract from the opinion is reprinted.― ED.

2 "The words [of the writ] are ad hospitandos homines per partes ubi hujismodi hospitia eristunt transeuntes, et in eisdem hospitantes; by which it appears that common inns are instituted for passengers and wayfaring

REX v. IVENS.

7 Car. & P. 213. 1835.

Supra, p. 4.1

STATE v. GOSS.

59 Vt. 266. 1886.1

ROWELL, J. This is a complaint in one count for selling, furnishing, and giving away intoxicating liquor contrary to law.

The facts are these. In the summer of 1883, one Pearson, who

men; for the Latin word for an inn is, diversorium, because he who lodges there is, quasi divertens se a via; and so diversoriolum. And therefore if a neighbor who is no traveller, as a friend, at the request of the innholder lodges there and his goods be stolen, etc., he shall not have an action; for the writ is, ad hospitandos homines, etc., transeuntes in eisdem hospitantes, etc." Calye's Case (1584), 8 Co. Rep. 32b. "The defendant was master of the Bell Inn, in Bristol. He was indicted for not receiving one taken ill with the smallpox; and it was quashed for not saying he was a traveller." King v. Luellin (1703), 12 Mod. 445. See also Curtis v. Murphy (1885), 63 Wis. 4.

"A man may keep an inn for those persons only who come in their own carriages." Johnson v. Midland Ry. (1849), 4 Exch. 367, 371. "Guests

of a hotel, and travellers and other persons entering it with the bona fide intent of becoming guests, cannot be lawfully prevented from going in, or be put out by force, after entrance, .... unless they be persons of bad or suspicious character, or of vulgar habits, or so objectionable to the patrons of the house, on account of the race to which they belong, that it would injure the business to admit them to all portions of the house." State v. Steele (1890), 106 N. C. 766, 782. In the following jurisdictions refusal on the part of an innkeeper to serve on account of race or color is forbidden by statute: California, Colorado, Georgia, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, New York, Ohio, Pennsylvania, Vermont and the United States possessions. In the following States refusal to serve "without just cause is forbidden by statute: Montana, Porto Rico and Utah. In Delaware and Tennessee innkeepers are by statute permitted to serve those whom they please. See the statutory provisions collected in the Appendix to Beale on Innkeepers, and also Revised Laws of Louisiana, § 456.- ED.

See also Nelson v. Boldt (1910). 180 Fed. 779.

1 See also Brown v. Brandt [1902] 1 K. B. 696; Goodenow v. Travis (1808), 3 Johns. (N. Y.) 427; Markham v. Brown (1837), 8 N. H. 523; State v. Steele, note 2 to the last case.

The unconventional dress of one desiring entertainment is no justification for refusal, if such dress is not indecent. Regina v. Sprague (1899), 63 J. P. (Eng.) 233.

One who insists on bringing a large dog with him into the inn may be refused entertainment. Regina v. Rymer (1877), 2 Q. B. D. 136.

As to the right of an innkeeper to eject one who has been received as a guest, on the ground that the guest has become intoxicated, or has developed a contagious disease, see McHugh v. Schlosser (1894), 159 Pa. 480. As to the right of an innkeeper to eject a guest who is no longer a traveller, see Lamond v. Richard [1897], 1 Q. B. 541.

1 The statement of facts, arguments of counsel and part of the opinion are omitted. ED.