The State ex rel. Star Publishing Company v. The Associated Press

• Decision Date: 25 January 1901
• Citation: 60 S.W. 91,159 Mo. 410
• Parties: THE STATE ex rel. THE STAR PUBLISHING COMPANY v. THE ASSOCIATED PRESS
• Court: Missouri Supreme Court

60 S.W. 91

159 Mo. 410

THE STATE ex rel. THE STAR PUBLISHING COMPANY v. THE ASSOCIATED PRESS

Supreme Court of Missouri

January 25, 1901

Peremptory writ denied.

Seymour D. Thompson, William J. Stone and Nathan Frank for relator.

(1) The business of collecting, distributing and vending news to a great number of newspapers throughout the United States is under the principles of the common law, and wholly without reference to the circumstances of the defendant, being a corporation and the grantee of important franchises including the delegated right of eminent domain -- a business affected with a public interest, which therefore is not juris privati and in respect to which the defendant is bound to serve all members of the public applying for its news service equally, under equal conditions. Lord Hale's Treatise De Portibus Maris, Ch. 6; 1 Harg. L. Tr., p. 77; Allnutt v Inglis, 12 East. 527. The crucial question in the case at bar is whether the employment of the defendant is analogous to that of a common carrier of news, or to that of a private carrier of news. If it were an open question, it would seem that the principles of the common law could leave no room for doubt that it belongs to the former class; but, as we shall show hereafter, the question is concluded by authority. On this principle of the common law, the right of the State to regulate the charges of grain elevators in Chicago was based in the great case of Munn v. Illinois, 94 U.S. 118; and the doctrine in this last case was applied by the same court to the proprietor of a grain elevator who was not incorporated. Budd v. New York, 143 U.S. 517. (2) Where a person or corporation is engaged in an employment affected with a public right or interest and also has a monopoly of that employment, the public nature of the employment conjoined with the fact of the monopoly compels such person or corporation to serve the public equally and for a reasonable compensation; and, for the purposes of this rule, it makes no difference how the monopoly was acquired. Lord Hale's Treatise, De Portibus Maris, Ch. 6; 1 Harg. L. Tr., p. 77; Bolt v. Stennett, 8 Term Rep. 606; Anonymous, 8 Term Rep. 608, note; Allnutt v. Inglis, 12 East. 527. (3) The power conferred upon an incorporated company or association to perform, for private gain or advantage, duties affected with a public interest, compels the performance of these duties without partiality or discrimination, and renders all engagements not so to perform them void. This principle has been applied in the case of railroad companies in frequent instances in England and in this country, and generally without the aid of any express statute commanding the performance of the particular duty in favor of the party complaining. Messenger v. Railroad, 36 N. J. L. 407; State v. Railroad, 17 Neb. 659; Marriott v. Railroad, 1 Com. B. (N. S.), 499; Garton v. Railroad, 30 L. J. (Q. B.), 273; Sandford v. Railroad, 24 Pa. St. 383; Vincent v. Railroad, 49 Ill. 33; Atwater v. Railroad, 48 N. J. L. 55; People v. Railroad, 130 Ill. 175; Railroad Commissioners v. Railroad, 63 Me. 269. The governing principles of these and other like cases hereafter referred to is, that where a corporation undertakes to perform a service to individual members of the public distributively, whether such undertaking is assumed by accepting a charter which commands the performance of the service in express terms, or which merely permits or licenses its performance, from which permission or license an obligation to perform it is implied in law, such corporation can be compelled by suitable legal process -- generally a mandamus, sometimes a mandatory injunction -- to perform that service. Haugen v. Light Co., 21 Ore. 423; Vincent v. Railroad, 49 Ill. 33; Atwater v. Railroad, 48 N. J. L. 56; State v. New Haven Co., 37 Conn. 153; State v. Nebraska Tel. Co., 17 Neb. 126; State v. Railroad, 17 Neb. 647; Waterworks v. State, 46 Neb. 194, s. c., 30 L. R. A. 447. (4) This doctrine is especially applicable to "common carriers of news." The attention of the court is now asked to a class of the foregoing cases where this doctrine has been asserted against corporations engaged in a certain kind of business which the courts have designated as that of "common carriers of news." These are telegraph companies furnishing business houses with market reports under continuing contracts and delivering such reports in such business houses by means of a telegraphic instrument called a "ticker." Friedman v. Tel. Co., 32 Hun (N. Y.) 4; Smith v. Tel. Co., 42 Hun (N. Y.) 454. (5) The defendant is subject to the operation of this principle because it is a telegraph and telephone company and, as such, has the delegated power of eminent domain. It is by accepting this franchise, with liberty to exercise it at pleasure, that the corporation is deemed to undertake to serve the public equally. Haugen v. Light Co., 21 Ore. 411. (6) The defendant is obliged to serve its news reports to publishers equally under equal conditions, because the statute law prohibits it from doing otherwise. Craft v. McConoughy, 79 Ill. 346; Coal Co. v. Coal Co., 68 Pa. St. 173; Horner v. Graves, 7 Bing. 743. (7) A survey of the preceding cases will show that mandamus has been the remedy usually resorted to at the relation of private persons or corporations, discriminated against by persons or corporations engaged in the performance of public duties, to compel such persons or corporations to serve the relators equally with other persons or corporations under like conditions; though mandatory injunctions have been used in a limited number of cases. We refer to the following, among many other cases, as illustrations of the proposition that the writ of mandamus is the proper remedy here. State v. Railroad, 17 Neb. 647; Railroad v. People, 56 Ill. 365; Atwater v. Railroad, 48 N. J. L. 55; People v. Railroad, 130 Ill. 175; Potwin Place v. Railroad, 51 Kan. 609; s. c., 37 Am. St. Rep. 312; Haugen v. Light Co., 21 Ore. 411; State v. Nebraska Tel. Co., 17 Neb. 126; Waterworks Co. v. State, 46 Neb. 194; s. c., 30 L. R. A. 447; Railroad v. Hall, 91 U.S. 343; affirming s. c., 3 Dill. (U.S.) 515; People v. Gaslight Co., 45 Barb. (N. Y.) 136; Price v. Riverside Co., 56 Cal. 431; Wheeler v. Irrigation Co., 10 Colo. 582; State v. Joplin Waterworks, 52 Mo.App. 312; Central Union Tel. Co. v. State, 118 Ind. 194; Central Union Tel. Co. v. State, 123 Ind. 113; Central Union Tel. Co. v. Bradbury, 106 Ind. 1; Bell Tel. Co. v. Com. (Pa.), 3 A. 825; State v. Tel. Co., 36 Oh. St. 296; State v. Bell Tel. Co., 23 F. 539; State v. Delaware, etc., Tel. Co., 47 F. 683; State v. Bell Tel. Co., 44 Am. Rep. 241; s. c., 22 Albany L. J. 363; Chesapeake, etc., Tel. Co. v. Baltimore, etc., Tel. Co., 66 Md. 399; People v. Railroad, 130 Ill. 175; State v. Railroad, 17 Neb. 647; State v. Nebraska Tel. Co., 17 Neb. 126; In re Trenton Water Power Co., 20 N. J. L. 659; Uniontown v. Commonwealth, 34 Pa. St. 293.

Boyle Priest & Lehmann and R. E. Ball for respondent; F. N. Judson of counsel.

(1) By-law seven was not enacted for the benefit of the relator and it does not in any view create a contract between the relator and respondent. The courts will not by mandamus compel the making of a contract, nor will they by mandamus or otherwise specifically enforce a contract whose performance requires long time, continuous supervision, special experience and business discretion. 14 Am. and Eng. Ency. of Law, 104; Tapping on Mandamus, 65; State ex rel. Bohannon v. Howard Co., 39 Mo. 375; Iron Age Co. v. Western Union, 83 Ala. 498; People v. Dulaney, 96 Ill. 503. (2) If newsgathering is a public employment, then, a fortiori the publication of a newspaper is so. The entire usage of Englishspeaking peoples with newspapers has been with them as institutions which should be free. In the gathering and transmission of its news, the Associated Press exercises no public franchises whatever. The gathering of news is a personal service, and the transmission of it is through public instrumentalities, with respect to which the Associated Press neither has nor claims any peculiar rights or privileges. The report of current events made by the members of the Associated Press and by its employees, being the product of individual labor unaided by public powers or special privileges, is private property. Venable v. Wabash, 112 Mo. 103; Harding v. Goodlett, 24 Am. Dec. 546; News Co. v. Stone, 15 N.Y.S. 2; Matthews v. Associated Press, ibid. 887. (3) The charter of the Associated Press does not assume to impose upon it any duty to render service to the relator. Nor would such obligation, if it existed, be enforced in this State. (4) The Associated Press is but an association of publishers who have combined their efforts and facilities to gather news for themselves as efficiently and economically as possible. It has and can have no monopoly of the news itself, and has neither monopoly nor special facility for the transmission of news. Other agencies for news-gathering do in fact exist and are in successful operation at this time. In direct contradiction of the allegations of the petition for mandamus the publishers of the Star assert that they now enjoy a better service than that rendered by the Associated Press. Commonwealth v. Hunt, 4 Metc. (Mass.) 111; Cote v. Murphy, 8 Am. R. R. and Corp. Rep. 610; Shoe Co. v. Saxey, 131 Mo. 212; Arthur v. Oakes, 63 F. 31; United States v. Debs, 64 id. 724; Case of Phelan, 62 id. 803; United States v. Elliott, 64 id. 27; Herriman v. Menzies, 46 P. 730; Matthews v. Associated Press, 32 N.E. 981; Munn v. Illinois, 94 U.S. 113; 18 Am. and Eng. Ency. of Law, 746; Tiedeman, Limitations of Police Power, sec. 2. (5) The Associated Press, while authorized by its original charter to...