I concur in Judge POUND'S conclusions, and in the reasoning which supports them.
The plaintiff did not get the right to occupy the highway unless it also got the right of eminent domain. The same sentence of the statute which says that telegraph companies shall have the one right, says also that they shall have the other. We must determine whether the plaintiff's business is so affected with a public use as to justify a holding that it comes by implication within the grant of these extraordinary privileges. I think the question is not strictly whether the legislature could confer such privileges by words clearly sufficient to indicate that intent. I think the question rather is whether the public use, if any, is so related to that served by the telegraph or the telephone generally as to make the inference of intent a fair one.
The purpose of the telegraph or telephone as commonly employed is not to carry information to the telegraph company itself. The purpose is to disseminate information among the public indiscriminately. The common welfare is served by freedom of communication, whether men or things or thoughts be the subjects of transmission. The telegraph and the telephone like the railroads and the post are agencies of commerce. They spread abroad *Page 441 the knowledge without which life could be ill maintained in a complex order of society.
The plaintiff is not organized to disseminate information indiscriminately among the members of the public in aid of the myriad interests which touch the lives of men. It is organized for the conveyance of a particular form of intelligence to a particular member of the public, i.e., to itself, in aid of a particular and private business. A railroad organized with the restriction that it should carry the products of the organizer and nothing else, would be a railroad in name, but not one organized for public service. A telephone company organized by a caterer or a jeweler or a department store with the restriction that it must carry no messages except orders for the wares or services of the organizer would meet with difficulty if it should attempt to exercise the power of eminent domain. This plaintiff seeks to exercise a like power in aid of its business as a private watchman. I do not think it is an answer to say that the business is a useful one and tends to the preservation of the peace and order of society. Private in its essential purpose, if not in the range or degree of its utility, it, none the less, remains. I do not say that the range or degree of its utility would not justify the legislature in investing it with special rights by special or explicit grant. That question is not here. I say merely that the private and selfish limits of its purposes forbid the implication of such a grant from words of doubtful import. The plaintiff is not a subordinate governmental agency like a volunteer fire department (Trustees of Exempt Firemen'sBen. Fund v. Roome, 93 N.Y. 313; Fox v. Mohawk H.R.Humane Soc., 165 N.Y. 517, 527), organized for the public good and supplying protection in a field where government has not entered. In a settled community, with an organized police force, with life and property defended by all the power of the state, it undertakes to supplement the protection of the police by the use of private watchmen *Page 442 furnished by itself. I speak of them as private watchmen though they may be sworn in as special officers. The company procures this rank for them in no spirit of public helpfulness, but merely to increase the effectiveness of service to subscribers. It does not come under a duty to watch the property of persons not subscribers, to warn them of impending danger, or to respond with relief to their summons of distress. Protection is restricted to those who pay the price.
I think we should be slow to hold that the legislature intended by words of general import to delegate the power of eminent domain in aid of such a purpose. These telegraphic signals are not employed as a means whereby the company's subscribers may communicate with one another and thus potentially with all the world. They are merely signals to the company that something has happened to call for investigation by a watchman in fulfillment of its contract. The signal may mean a burglar or a forgetful householder or a window broken by a storm. I can discover only a remote connection between the good to be attained by signaling a contractor in aid of the fulfillment of his contract, and the good resulting from the free interchange of ideas among the members of the community by telegram or telephone or post in aid of the multifarious needs and interests of life in organized society. Private detective agencies are not organs of government. The state is still the primary guardian of the peace and order of its members. Its power to condemn the property of the citizen is not to be extended by doubtful inference and remote analogy to agencies organized for private gain which supplement its action. In the peace of the state, most men pass their lives, and find repose in its protection. Those who wish a special protection beyond that which most of us find necessary and which government supplies, have not yet been given the right to obtain it by the occupation of the land of others or by encroachment on the public ways. *Page 443
I think the history of the statute confirms this estimate of its purpose. If we carry ourselves back in thought to 1848, we cannot doubt that the extraordinary powers conferred upon telegraph companies by the general statute of that year (L. 1848, ch. 265) went to them in their capacity as purveyors of intelligence, fulfilling functions akin to those of common carriers, like the railroads and the post. They were authorized to construct lines of telegraph along the public roads and highways and (upon payment of just compensation) over lands in private ownership, and they were required to receive dispatches from any member of the public, and to transmit them with impartiality and in the order of receipt (secs. 5, 11 and 12). The wording of the statute, in so far as it confers the right to occupy the highways, is substantially the same as that of the Post Roads Act of Congress, adopted July 24, 1866 (14 St. 221, ch. 230), which gave to every telegraph company the right to construct, maintain and operate its lines along the post roads of the nation (Richmond v. Southern Bell Tel. Tel. Co.,174 U.S. 761; Postal Tel.-Cable Co. v. City of Richmond,249 U.S. 252; People ex rel. Postal Tel.-Cable Co. v. State Bd. of TaxCommissioners, 224 N.Y. 167). The end in view was the same under one statute as under the other, the fostering, for the public good, of the public agencies of commerce. It is true that by a ruling of the Supreme Court, telephone companies do not enjoy the protection of the Federal act (Richmond v. Southern Bell Tel. Tel. Co., supra), and that by a ruling of this court (HudsonRiver Tel. Co. v. Watervliet T. Ry. Co., 135 N.Y. 393, 405), now confirmed by legislation (Transp. Corp. Law, Cons. Laws, ch. 33, sec. 100), they do enjoy like privileges with telegraph companies of the older form under the statutes of the state. That ruling found its basis in the fact that the telephone, like the telegraph, is a purveyor of intelligence by electricity, and thus fulfills a like function as an instrumentality of *Page 444 commerce. But even under our statute, the function fulfilled is of the essence of the privilege enjoyed. No one, I think, would assert that the plaintiff, even though it transmits electric signals by methods not unknown in 1866, is an instrumentality of commerce entitled as of right to occupy the highways of the nation. I see no better reason to believe that it is entitled as of right to occupy the highways of the state.
I do not forget that the plaintiff has been incorporated under the Telegraph Act, and that the legislature has recognized the regularity of its corporate existence. That is not equivalent to recognition of its right to obstruct the highways of the public, or to condemn the lands of private owners, irrespective of the purpose served by condemnation or obstruction. Any seven men may make themselves a telegraph company by filing a certificate. When they go farther, and attempt to occupy the highways or condemn the property of their neighbors, they must show something more than regularity of corporate existence. They must show that they are acting in aid of public purposes, and not merely that, but in aid of the public purposes which the legislature had in view when it said that telegraph companies might exercise as its delegate an important attribute of sovereignty. It is true that section 102 of the statute (Transp. Corp. Law) says that every "such corporation," i.e., every telegraph and telephone company, may occupy and condemn. It is also true, however, that section 103 of the statute says that "every such corporation," shall receive dispatches from the public and transmit them as received. Duty and privilege are imposed and granted in terms of equal generality. Construction of the statute, if permissible to exclude the plaintiff from the duty, is equally permissible to exclude it from the privilege. I think that sections 102 and 103 of the present statute, like the corresponding sections of the act of 1848, must be limited in their application to corporations serving the public *Page 445 as instrumentalities of commerce. The readiness of the legislature to clothe with extraordinary powers the telegraph companies which it knew in 1848 and which fulfilled the function of common carriers of intelligence, and even to clothe telephone companies with like powers since they fulfill a like function, is little evidence of its readiness to extend the same powers to corporations which are not common carriers of intelligence, and which, if they serve any public use, serve one that is doubtful and limited and indisputably different.
The plaintiff lays much stress on section 105 of the Transportation Corporations Law. Its history is, I think, significant. It goes back to 1880. By chapter 90 of the Laws of 1880, entitled "An act to authorize the police department or board of police of any city to appoint policemen of district telegraph companies," authority was given for the appointment of special policemen, not exceeding two hundred, in aid of a telegraphic system of signaling to a central office (See also Consolidation Act, L. 1882, ch. 410, sec. 314). That was the statute regulating the subject at the time of the incorporation of the plaintiff in 1883. It was not an amendment of the act of 1848, under which telegraph companies were organized. It was not a term of the charter. It was an independent grant of power. The legislature knew that signal companies existed; but we have no reason to suppose that it also knew under what statutes they had been incorporated, or whether they had strung their wires under the claim of a perpetual franchise, or under temporary or special license. In point of fact, the plaintiff's predecessor, then the owner of this plant, was not organized under the Telegraph Act at all, but under the act for the formation of business corporations. The act of 1880, first adopted as an independent statute, did not come into the Transportation Corporations Law till 1890 (L. 1890, ch. 566, sec. 105, repealing L. 1880, ch. 90), and there it has since remained. If it did not *Page 446 have the effect, when it stood alone, of clothing the plaintiff with the power of eminent domain, I do not think it gained that effect when in the course of revision it was brought into a different context. Something more must be shown to sustain the claim of title to a privilege so extraordinary. In the process of the consolidation of a multitude of scattered statutes, there have come into the Transportation Corporations Law fragments of legislation which, if related to every preceding section, might bring the plaintiff and like companies within the letter of the grant. The problem is not solved so easily. It remains in the end a problem in the reading of the legislature's intention, with a larger problem of constitutional power ever in the background. The nature of the use determines the nature of the privilege.
I find little force in the argument of practical construction. If there has been practical construction in favor of the company, there has also been practical construction against it, and that by the one person best acquainted with the situation, the company itself. The Public Service Commissions Law (Cons. Law, ch. 48), requires every telegraph and telephone company to file schedules of its charges (sec. 92), and to make yearly reports to the commission (sec. 95). No schedules or reports have been filed by the plaintiff, though the failure to file them, if they are due, has subjected it to heavy penalties (sec. 102). I think that telegraph and telephone companies within the purview of the Public Service Commissions Law are those that would be so recognized in the common speech of men. The plaintiff has rightly acted on the assumption that it does not come within that class. By the same token it does not come within the class of telegraph or telephone companies invested with the power of eminent domain. I lay slight stress on the circumstance that public officers did not attempt to disturb the wires when they were strung across the housetops. We may get some notion of the slight significance of silence and inaction when we *Page 447 recall that the wires were strung in the beginning by the plaintiff's predecessor, organized as a business corporation, and, therefore, without shadow of right, in default of special license, to occupy the public ways.
I am not free from doubt by any means. The principle, however, is fundamental that "every public grant of property, or of privileges or franchises, if ambiguous, is to be construed against the grantee and in favor of the public" (Cent. Transp.Co. v. Pullman Palace Car Co., 139 U.S. 24, 49; Charles RiverBridge v. Warren Bridge, 11 Pet. 420, 544). It is in favor of the public that my doubts are now resolved.
The judgment should be affirmed with costs.
ANDREWS, J., concurs in memorandum with CRANE, J.; CHASE and COLLIN, JJ., concur with both CRANE and ANDREWS, JJ.; CARDOZO and POUND, JJ., read dissenting opinions; HISCOCK, Ch. J., not voting.
Judgments reversed, etc.