« ForrigeFortsett »
Court of Appeals affirmed so far as it revers- | es the decree of the Circuit Court, and cause remanded, with directions for further proceedings in the latter court.
See same case below, 78 Fed. Rep. 858, and 42 U. S. App. 686, 697, 698, 85 Fed. Rep. 19, 28 C. C. A. 659.
The facts are stated in the opinion.
Messrs. Hill Carter, Addison L. Holladay, and George H. Fearons for appellee.
61] *Mr. Justice Harlan delivered the opinion
of the court:
The principal question in this case is whether the circuit court and the circuit court of appeals erred in holding that the appellee was entitled to claim the benefit of the provisions of the act of Congress approved July 24th, 1866, entitled "An Act to Aid in the Construction of Telegraph Lines, and to secure to the Government the Use of the Same for Postal, Military, and Other poses." 14 Stat. at L. 221, chap. 230.
from the date of the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of, said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected.
"S 4. That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster *General, of the restrictions and obliga- tions required by this act." 14 Stat. at L. 221, chap. 230.
Subsequently, by an act approved June 8th, 1872, all the waters of the United States dur ing the time the mail was carried thereon; all railways and parts of railways which were then or might thereafter be put in operation; all canals and all plank roads; and all Pur-letter-carrier routes established in any city or town for the collection and delivery of mail matter by carriers, were declared by Congress to be "post roads." 17 Stat. at L. 308, chap. 335. These provisions are pre
By that act-the provisions of which are preserved in sections 5263 to 5268, inclusive, title LXV. of the Revised Statutes of the United States-it was provided:
"§ 1. That any telegraph company now organized, or which may hereafter be organized, under the laws of any state in this Union, shall have the right to construct, 762] maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States: Provided, That such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may preempt and use such portion of the unoccupied public lands subject to pre-emption through which its lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.
"§ 2. That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster General.
"§ 3. That the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person: Provided, however, That the United States may at any time after the expiration of five years
served in section 3964 of the Revised Statutes of the United States.
By an act approved March 1st, 1884, "all public roads and highways, while kept up and maintained as such," were declared to be "post routes." 23 Stat. at L. 3, chap. 9.
Proceeding under an act of the legislature of New York of April 12th, 1848, and acts amendatory thereof, certain persons associated themselves on the 11th day of December, 1879, under the name of the Southern Bell Telephone & Telegraph Company. The articles of association stated that the gen eral route of the line or lines of the company should be from its office in the city of New York, "by some convenient route through or across the states of New Jersey Pennsylvania, Delaware, Maryland, and Virginia, or otherwise, to the city of Wheeling or some other convenient point in the state of West Virginia, and thence to and between and places within that part of the state of and throughout various cities, towns, points, West Virginia lying south of the Baltimore & Ohio Railroad, and within the states of Virginia, North Carolina, South Carolina, Georgia, Alabama, and Florida, the said line
or lines to connect the said cities of New York and Wheeling together, and the said other cities, towns, points, and places, or some of them, or points within the same, together or with each other or with said cities of New York and Wheeling."
By an ordinance passed by the city of Richmond on the 26th day of June, 1884, it was provided: "1. Permission is hereby granted the Southern Bell Telephone & Telegraph Company to erect poles and run suitable wires thereon, for the purpose of telephonic communication throughout the city *of Richmond, on the public streets thereof, on such routes as may be specified and agreed on by a resolution or resolutions of the committee on streets, from time to time, and
upon the conditions and under the provisions | poles under and by authority of the common
The Code of Virginia adopted in 1887, 8 1287, provided that "every telegraph and every telephone company incorporated by this or any other state, or by the United States, may construct, maintain, and operate its line along any of the state or county roads or works, and over the waters of the state, and along and parallel to any of the railroads of the state, provided the ordinary use of such roads, works, railroads, and waters be not thereby obstructed; and along or over the streets of any city or town, with the consent of the council thereof."
Under date of February 13th, 1889, the Southern Bell Telephone & Telegraph Company filed with the Postmaster General its written acceptance of the restrictions and obligations of the above act of July 24th, 1866.
 *The present suit was brought by that company in the circuit court of the United States against the city of Richmond.
The bill alleged that the plaintiff was engaged in the business of a "telephone" company, and of constructing, maintaining, and operating "telephone" lines in, through, and between the states of Virginia, West Virginia, North Carolina, South Carolina, Georgia, Alabama, and Florida; that it had been so engaged for a period of about fifteen years, during which time it had continuously maintained at various places in said states and in Richmond, Virginia, an exchange, poles, wires, instruments, and all other apparatus and property necessary for the maintenance and operation of "telephones and telephone lines," and had erected and maintained through and along the certain streets and alleys of that city numerous poles and wires for conducting its business; that it had so conducted its business and erected and maintained its lines, wires, and
The plaintiff also alleged that it had accepted the act of Congress of July 24th, 1866; that by virtue of such acceptance it became entitled to construct, maintain, and operate lines of telephones over and along any of the military roads and post roads of the United States, which had then been or might thereafter be declared such by law; that the streets, alleys, and highways of the city of Richmond are post roads of the United States; that the several departments of the government of the United States lo- cated in Richmond have used in that city the plaintiff's electrical conductors, and other facilities for the transmission of instrue tions, orders, and information to officers and persons in the administration of governmen tal affairs and on other business throughout the several states and the district of Columbia and in foreign countries; that under and by virtue of the Virginia Code, section 1287, the plaintiff was authorized and empowered to construct, maintain, and operate its lines of poles and wires, with necessary facilities, along and over the streets of any city or town in Virginia with the consent of the council thereof, and under and by virtue of the power and authority therein conferred, all of which was additional to the right given by the above act of Congress, it maintained and operated its lines in the streets of the city of Richmond, and had in all respects complied with the legal obligations and requirements imposed; that relying upon its right to erect, maintain, and operate its lines along and over the streets and alleys of Richmond, it entered upon said streets and alleys and had conducted its business and executed its contracts, of which a large number were in force, to furnish and afford "telephonic" facilities to the residents of Richmond and to persons outside of the city of Richmond, and with the officers and agents of the Federal government; and that under the act of Congress of 1866 it was and is entitled to maintain and operate its lines through and over the streets and alleys of the city of Richmond, "without regard to the consent of the said city, and it did in fact locate many of its poles and wires and begin the operation of its business without applying to the said city for permission to do so."
The bill then referred to an ordinance of | braced by the terms of the act of Congress, the city approved July 18th, 1991, and al- and that, in fact, telephone and telegraph leged that it was in conflict with the plain- companies were, for the purposes embraced tiff's rights and void. It referred also to aby that act, one and the same; that the post subsequent ordinance of December 14th, roads spoken of in the act were not limited 1894, repealing the ordinance of June 26th, to routes on the public domain, but embraced 1884, granting the right of way through the all post roads of the United States that had city to the plaintiff, and providing "that in been or might hereafter be declared such by accordance with the fifth section of said or- Congress; that the streets and alleys of the dinance all privileges and rights granted by defendant being post roads, the plaintiff had said ordinance shall cease and be determined the right under the act of Congress "to ocat the expiration of twelve months from the cupy the streets and alleys of the city of approval of this ordinance by the mayor." Richmond for its purposes, guaranteed to it Reference was also made in the bill to two by the Constitution and laws of the United ordinances passed September 10th, 1895, by States, superior to any power in the said one of which it was provided, among other city to prevent it from so doing," and that things: "1. That all poles now erected in it "claims not only the right to maintain its the streets or alleys of the city of Richmond, present poles and wires along the streets and for the support of wires used in connection alleys now occupied by it, but to extend them with the transmission of electricity, except to other streets and alleys as its business and such as support wires required by the city the business interests of the country and its ordinances, to be removed and run in con- patrons may require." duits, shall hereafter be allowed to remain only upon the terms and conditions hereinafter set forth. 2. No pole now erected for the support of telephone wires shall remain on any street in said city after the 15th day of December, 1895, unless the owner or user of such pole shall first have petitioned for and obtained the privileges of erecting and maintaining poles and wires for telephone purposes in accordance with the conditions of this ordinance, and such other conditions as the council may see fit to impose. And if such owner, failing to obtain such privilege as above required, shall neglect or fail to remove such pole or poles and telephone wires supported thereon from the streets or alleys of the city by the 20th day of December,
1895, and restore the street to a condition
similar to the rest of the street or alley con-
The city demurred to the bill of complaint, but the demurrer was overruled. 78 Fed. Rep. 858.
Ân answer was then filed which met the material allegations of the bill and the cause was heard upon the merits.
In the circuit court a final decree was en
tered in accordance with the prayer of the bill, as follows: "The court, without passing on the rights claimed by the complainant company under the laws of Virginia and the ordinances of the city of Richmond, is of opinion and doth adjudge, order, and decree, that the complainant company has, in ac cordance with the terms and provisions and of the United States approved July 24th, under the protection of the act of Congress 1866 (which is an authority paramount and in conflict therewith), the right to construct, superior to any state law or city ordinance along the streets and alleys of the city of maintain, and operate its lines over and Richmond, both those now occupied by the complainant company and those not now so occupied, and to put up, renew, replace, and repair its lines, poles, and wires over and along said streets and alleys, as well as to and to connect its lines with new subscribers maintain, construct, and operate the same, along said streets and alleys, and the said city of Richmond, its agents, officers, and all ting, removing, or in any way injuring said others are enjoined and restrained from cutlines, poles, and wires of the complainant with the exercise of the aforesaid rights by company, and from preventing or interfering the complainant company, and also from tak. ing proceedings to inflict and enforce fines and penalties on said company for exercising its said rights. And the court doth adjudge, order, and decree that the defendant do pay to the complainant its costs in this That the fifth section of the ordinance of suit incurred to be taxed by the clerk, and [76811884 was null and void; that the ordinances this cause is ordered to be removed from the referred to were unreasonable, ultra vires, docket and placed among the ended causes, and unconstitutional; that the plaintff was but with liberty to either party hereto on entitled, "independent of and superior to the ten days' notice to the other to reinstate this consent of the city of Richmond," to "con- cause on the docket of this court, on motion, struct, maintain, and operate" its lines "over for the purpose of enforcing and specifically and along" the streets of that city; that tele- defining, should it become necessary, their phone companies and their business were cm-respective rights under this decree."
By the other ordinance of September 10th, 1895, it was, among other things, provided: "The city council will grant permission to any company, corporation, partnership, or individual to place its wires and electrical conductors in conduit under the surface of said streets of the city: any such individual, partnership, corporation, or company desiring such permission shall petition to the council therefor; such petition shall name the streets, alleys, and the side and portions thereof to be used and occupied by such conduits, and shall submit maps, plans, and details thereof to accompany such petition."
The bill contains additional allegations to the effect
The city asked that the decree be modified by inserting therein after the words "construct and operate the same," the following words: "so far as to receive from and deliver to the Western Union Telegraph Company messages sent from beyond the limits of the state of Virginia or to be sent beyond the said limits;" and by inserting therein after the words, "interfering with the exercise of the aforesaid rights by the complainant company," the following words: so far as the reception from and delivery to the Western Union Telegraph Company of any message sent from beyond the limits of the state of Virginia, or to be sent beyond said limits." But counsel for complainant objected, and the court (using the language of its order), "intending by said injunction to enjoin the city from interfering with the local business and messages, as well as those of an interstate character," refused to so modify the de
Upon appeal to the circuit court of appeals it was held that the plaintiff came within the protection and was entitled to the privileges of the act of Congress of July 24, 1866; and that under that act it had the right to construct, maintain, and operate lines of telegraph over and along any of the post roads of the United States, and "when an effort is made, or threatened, to deal with it as a trespasser, it can refer to that act."
The circuit court of appeals also held that the privileges so granted were to be enjoyed in subordination to public and private rights, and that the municipality could establish lawful provisions regulating the use of the highways mentioned in the act of Congress. "This being so," that court said, "the injunction granted by the circuit court is too broad in its language and effect. There should have been the recognition of a proper exercise of the police power by the municipal corporation and the use by the complainant of its poles and lines should have been declared to be subject to such regulations and restrictions as may now or may be hereafter imposed by the city council of Richmond, in the proper and lawful exercise of the police power." 42 U. S. App. 686, 697, 698.
The decree of the circuit court was reversed, and the cause was remanded to that court with instructions to modify the terms of the injunction therein granted so as to conform to the principles declared in the opinion of the circuit court of appeals. Judge Brawley concurred in the result, but was not inclined to assent to so much of the opinion as held that a telephone company, such as was described in this case, and whose business was local in character, was within the purview of the act of Congress of July 14th, 1866, relating to telegraph companies.
upon which the decree of the circuit court
The circuit court of appeals, while hold-
In Western Union Telegraph Co. v. [Atty. Gen. of] Massachusetts, 125 U. S. 530, 548, [31: 790, 793], it was held that the act of 1866 was a "permissive" statute, and that "it never could have been intended by the Congress of the United States, in conferring upon a corporation of one state the authority to enter the territory of any other state and erect its poles and lines therein, to establish the proposition that such a company owed no obedience to the laws of the state into which it thus entered, and was under no obligation to pay its fair proportion of the taxes necessary to its support."
In St. Louis v. Western Union Telegraph Co. 148 U. S. 92, 100 [37: 380, 383], which involved the question whether a corporation proceeding under the act of 1866 could oc cupy the public streets of a city without making such compensation as was reasonably required, it was said to be a misconception to suppose that the franchise or privilege granted by the act of 1866 carried "with it the unrestricted right to appropriate the public property of a state. It is like any other franchise, to be exercised in subordination to public as to private rights. *While a grant[772} from one government may supersede and abridge franchises and rights held at the will of its grantor, it cannot abridge any property rights of a public character created by the authority of another sovereignty. No one would suppose that a franchise from the Federal government to a corporation, state or national, to construct interstate roads or lines of travel, transportation or communication, would authorize it to enter upon the private property of an individual, and ap
The case is now before this court upon writpropriate it without compensation. No mat of certiorari.
The plaintiff's bill, as we have seen, proceeded upon the broad ground that it is entitled, in virtue of the act of Congress of 1866, to occupy the streets of Richmond with its lines without the consent, indeed against the will, of the municipal authorities of that city. That, it would seem, is the ground
ter how broad and comprehensive might be
upon property of a public nature belonging | Electric Railway Co. 42 Fed. Rep. 273 [12 to a state. It would not be claimed, for in- L. R. A. 544]. Upon the authority of those stance, that under a franchise from Congress cases it is contended that the act of Congress to construct and operate an interstate rail- should be construed as embracing both teleroad the grantee thereof could enter upon the phone and telegraph companies. state-house grounds of the state, and construct its depot there, without paying the value of the property thus appropriated. Although the state-house grounds be property devoted to public uses, it is property devoted to the public uses of the state, and property whose ownership and control are in the state, and it is not within the competency of the national government to dispossess the state of such control and use or appropriate the same to its own benefit or the benefit of any of its corporations or grantees, without suitable compensation to the state. This rule extends to streets and highways; they are the public property of the state. While for the purposes of travel and common use they are open to the citizens of every state alike, and no state can by its legislation deprive a citizen of another state of such common use, yet when an appropriation of any part of this public property to an exclusive use is sought, whether by a citizen or a corporation of the same or another state, or a corporation of the national government, it is within the competency of the state, representing the sovereignty of that local pub-telegraph companies by that statute, which, lic, to exact for its benefit compensation for this exclusive appropriation. It matters not for what the exclusive appropriation is taken, whether for steam railroads or for street railroads, telegraphs, or telephones, the state may if it chooses exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated."
The English case was an information filed for the purpose of testing the question whether the use of certain apparatus was an infringement of the exclusive privilege given to the Postmaster General by certain acts of Parliament as to the transmission of "telegrams." The court held that the Postmaster General was entitled, looking at the mani-[774} fest objects of those acts and under a reasonable interpretation of their words, to the exclusive privilege of transmitting messages or other communications by any wire and ap paratus connected therewith used for telegraphic communication, or by any other apparatus for communicating information by the action of electricity upon wires. The Maryland case involved the question whether a company organized under a general incorporation law of Maryland was authorized to do a general telephone business. In the Wisconsin case some observations were made touching the question whether telephone companies, although not specifically mentioned in a certain general law of that state, could be incorporated with the powers given to as the report of the case shows, authorized the formation of corporations for the purpose of building and operating telegraph lines or conducting the business of telegraphing in any way, "or for any lawful business or purpose whatever." The New Jersey case involved the question whether a company organized under the act of that state to incorporate and regulate telegraph companies was entitled to operate and condemn a route But independently of any question as to for a telephone line. The last case involved the extent of the authority granted to "tele- the rights of a telephone company under statgraph" companies by the act of 1866, we are utes of Tennessee, one of which related in of opinion that the courts below erred in terms to telegraph companies, and the other holding that the plaintiff, in respect of the authorized foreign and domestic corporations particular business it was conducting, could to construct, operate, and maintain such invoke the protection of that act. The plain- telegraph, telephone, and other lines necestiff's charter, it is true, describes it as a sary for the speedy transmission of intellitelephone and telegraph company. Still, as gence along and over the public ways and disclosed by the bill and the evidence in the streets of the cities and towns of that state. cause, the business in which it was engaged It was held in that case that a telephone comand for the protection of which against hos-pany under its right to construct and operate tile local action it invoked the aid of the Federal court, was the business transacted by using what is commonly called a "telephone," which is described in an agreement between the Western Union Telegraph Company and the National Bell Telephone Company in 1879, as "an instrument for electrically transmitting or receiving articulate speech." Our attention is called to several adjudged cases in some of which it was said that comIt may be that the public policy intended munication by telephone was communication to be promoted by the act of Congress of 1866 by telegraph. Attorney General v. Edison would suggest the granting to telephone com  Telephone Co. L. R. 6 Q. B. Div. 244, 255; panies of the rights and privileges accorded Chesapeake & Potomac Telephone Co. v. Bal- to telegraph companies. And it may be that timore & O. Telegraph Co. 66 Md. 399 [59 if the telephone had been known and in use Am. Rep. 167]; Wisconsin Telephone Co. v. when that act was passed, Congress would City of Oshkosh, 62 Wis. 32; [State, ex rel.] | have embraced in its provisions companies Duke, v. Central New Jersey Telephone Co. employing instruments for electrically trans53 N. J. L. 341 [11 L. R. A. 664]; Cumber-mitting articulate speech. But the question land Telephone & Telegraph Co. v. United' is, not what Congress might have done in
a telegraph was empowered by statute to establish a telephone service. None of those cases involved a construction of the act of Congress; and the general language employed in some of them cannot be regarded as decisive in respect of the scope and effect of that act, however pertinent it may have been as to the meaning of the particular statutes under examination.