Chesapeake & P. Tel. Co. v. Baltimore & Ohio Tel. Co.
| Decision Date | 05 January 1887 |
| Parties | CHESAPEAKE & POTOMAC TELEPHONE CO. OF BALTIMORE CITY v. BALTIMORE & OHIO TEL. CO. OF BALTIMORE CITY. |
| Court | Maryland Court of Appeals |
Appeal from superior court, Baltimore city. Mandamus.
C.J. M. Gwinn and Gen. Swayne, for appellant.
John K. Cowan and E. J. D. Cross, for appellee.
This was an application by the appellee, a telegraph company, to the court below for a mandamus, which was accordingly ordered, against the appellant, another telegraph company, but doing a general telephone business. Both the appellant and appellee are corporations formed under the general incorporation law of this state, (Act 1868 c. 471,) and both were organized "for constructing, owning, leasing, and operating telegraph lines within this state, or from or to any point or points within this state, or upon the boundaries thereof." The appellee was incorporated on the seventh day of January 1882, by the name of the Baltimore & Ohio Telegraph Company of Baltimore City, and the appellant was incorporated on the tenth day of March, 1884, by the name of the Chesapeake & Potomac Telegraph Company of Baltimore City. The principal offices of both companies are in Baltimore city; the appellee doing a large and extensive general telegraph business, and the appellant doing a general telephone business.
Section 133 of the general incorporation law declares that "any person, association, or corporation owning any telegraph line doing business within the state shall receive dispatches from and for other telegraph lines, associations, and companies, and from and for any individual, and shall transmit such dispatches in the manner established by the rules and regulations of such telegraph lines, and in the order in which they are received, with impartiality and good faith, under the penalty of one hundred dollars for every neglect or refusal so to do, to be recovered, with costs of suit, in the name and for the benefit of the person or persons sending or desiring to send such dispatch: provided, however, that arrangements may be made with the proprietors or publishers of newspapers for transmission of intelligence of general and public interest, for the purpose of publication, out of its order." And by the amendatory act of 1884, c. 360, the general incorporation law is made in terms to confer authority to form corporations to construct, own, or operate telephone as well as telegraph lines; and by the same amendatory act it is provided that the several sections of the general incorporation law relating to telegraph companies "shall likewise apply to and have full force and effect in respect to telephone companies created under the provisions of the act."
This latter act is supposed to have been passed in order to remove all possible doubt as to the authority, under the general incorporation law, for incorporating telephone companies. But it is clear, if we take the term "telegraph" to mean and include any apparatus or adjustment of instruments for transmitting messages or other communications by means of electric currents and signals, that term is comprehensive enough to embrace the telephone. And that the telephone is so embraced within the definition of the telegraph has been expressly decided in England, after the most careful analysis and comparison of the different instrumentalities, and the manner of using them, in the two systems. Attorney General v. Edison Telephone Co., 6 Q. B. Div. 244. Therefore, notwithstanding the appellant was organized as a telegraph company under the general incorporation law, before the passage of the act of 1884, c. 260, it was and still is fully authorized to do a general telephone business, and in doing such business it is subject to the provisions of the general incorporation law that apply to telegraph companies.
The appellant appears to be an auxiliary company, operating the telephone exchange under the patents known as the "Bell Patents." Those patents, formerly held by the National Bell Telephone Company, are now held by the American Bell Telephone Company, a corporation created under the law of the state of Massachusetts. The patents, with the contracts relating thereto, were assigned by the former to the latter company, prior to the twenty-third of May, 1882; and it is under a contract of the date just mentioned that the appellant acquired a right to use the patented devices in the operation of its system of telephonic exchanges.
In the agreed statement of facts it is admitted that all the telephones used by the Chesapeake & Potomac Telephone Company, a company to which the appellant is an auxiliary organization, and also all the telephones used by the appellant in its exchange in the city of Baltimore, and elsewhere in the state, are the property of the American Bell Telephone Company. It is alleged by the appellee, and admitted by the appellant, that the offices of the Western Union Telegraph Company of Baltimore City are connected with the telephone exchange of the appellant; and that, when a subscriber to the telephone exchange wishes to send a message by way of the lines of the Western Union Telegraph Company, the subscriber calls up the telephone exchange, and the agent there connects him with the office of the Western Union Telegraph Company, and the subscriber thereupon telephones his message, over the lines of the appellant, to the Western Union Telegraph office; and a like process is repeated when a message is received by the Western Union Telegraph Company for a subscriber to the telephone exchange of the appellant. The appellee is a competing company in the general telegraph business with the Western Union Telegraph Company; and, being such, it made application to the appellant to have a telephone instrument placed in its receiving room in Baltimore, and that the same might be connected with the central exchange of the appellant in that city, so that the appellee might be placed upon the same and equal footing with the Western Union Telegraph Company in conducting its business. This request was refused, unless the connection be accepted under certain conditions and restrictions to be especially embodied in a contract between the two companies, and which conditions and restrictions do not apply in the case of the Western Union Telegraph Company.
It appears that there were conflicting claims existing as to priority of invention and alleged infringement of patent-rights which were involved in a controversy between the Western Union Telegraph Company and others and the National Bell Telephone Company, to whose rights the American Bell Telephone Company succeeded; and, in order to adjust those conflicting pretensions, the contract of the tenth of November, 1879, was entered into by the several parties concerned. The contract is very elaborate, and contains a great variety of provisions. By this agreement, with certain exceptions, the National Bell Telephone Company was to acquire and become owner of all the patents relating to telephones, or patents for the transmission of articulate speech by means of electricity. But while it was expressly stipulated (article 13, cl. 1) that the right to connect district or exchange systems, and the right to use telephones on all lines, should remain exclusively with the National Bell Telephone Company, (subsequently the American Bell Telephone Company,) and those licensed by it for the purpose, it was in terms provided that ...
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