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 cree. Upon appeal to the circuit court of appeals [770]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, [773]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 [775] 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. 1866 nor what it may or ought now to do, | privileges ought to be granted to telephone It is not the function of the judiciary, because of discoveries after the act of 1866, to broaden the provisions of that act so that it will include corporations or companies that were not, and could not have been at that time, within the contemplation of Congress. If the act be construed as embracing telephone companies, numerous questions are readily suggested. May a telephone company, of right, and without reference to the will of the states, construct and maintain its wires in every city in the territory in which it does business? May the constituted authorities of a city permit the occupancy only of certain streets for the business of the com street and alley in every city or town in the In 1887 the Postmaster General submitted country with poles on which its wires are to the Attorney General the question strung, or may the local authorities forbid whether a telephone company or line, offer- the erection of any poles at all? May a coming to accept the conditions prescribed in pany run wires into every house in a city, as title LXV of the Revised Statutes (being the owner or occupant may desire, or may[777] the act of 1866), could obtain the privileges the local authorities limit the number of therein specified. Attorney General Garland wires that may be constructed and used withreplied: "The subject of title LXV of Re- in its limits? These and other questions vised Statutes is telegraphs. In all its sec- that will occur to everyone indicate the contions the words 'telegraph,' 'telegraph com- fusion that may arise if the act of Congress, pany' and 'telegram,' define and limit the relating only to telegraph companies, be so subject of the legislation. When the law was construed as to subject to national control made, the electric telegraph, as distinguished the use and occupancy of the streets of cities from the older forms, was what the lawmak- and towns by telephone companies, subject ers had in view. The electric telegraph, only to the reasonable exercise of the police when the law was made, as to the general powers of the state. But even if it were conpublic, transmitted only written communica- ceded that no such confusion would probably tions. Its mode of conduct is yet substan- arise, it is clear that the courts should not tially the same. This transmission of writ- construe an act of Congress relating in terms ten messages is closely analogous to the only to "telegraph" companies as intended to United States mail service. Hence the acconfer upon companies engaged in telephone ceptance of the provisions of the law by the business any special rights in the streets of telegraph company was required to be filed cities and towns of the country, unless such [776]with the Postmaster General, *who has charge intention has been clearly manifested. We of the mail service. Under the several sec- do not think that any such intention has tions embraced in the title, in consideration been so manifested. The conclusion that of the right of way and the grant of the right the act of 1866 confers upon telephone comto pre-empt 40 acres of land for stations at panies the valuable rights and privileges intervals of not less than 15 miles, certain therein specified is not authorized by any exprivileges as to priority of right over the plicit language used by Congress, and can be line, also the right to purchase, with power justified by implication only. But we are to annually fix the rate of compensation, unwilling to rest the construction of an imwere secured to the government. Governmenportant act of Congress upon implication tal communications to all distant points are almost all, if not all, in writing. The useful might tend to narrow the full control always merely; particularly if that construction government privileges which formed an im- exercised by the local authorities of the portant element in the legislation would be states over streets and alleys within their entirely inapplicable to telephone lines, by respective jurisdictions. If Congress desires which oral communications only are trans- to extend the provisions of the act of 1866 mitted. A purchase of a telephone line certo companies engaged in the business of electainly was not in the mind of the lawmakers. trically transmitting articulate speech-that In common and technical language alike, is, to companies popularly known as telephone telegraphy and telephony have different sig- companies, and never otherwise designated in nifications. Neither includes all of the oth-common speech-let it do so in plain words. The science of telephony as now understood was little known as to practical utility in 1866, when the greater part of the law contained in the title was passed. Telephone companies therefore are not within the 'category of the grantees of the privileges conferred by the statute.' If similar er. It will be time enough when such legislation is enacted to consider any questions of constitutional law that may be suggested by it. Something was said in argument as to the power of Congress to control the use of streets in the towns and cities of the country. Upon that question it is not necessary to express any opinion. We now adjudge only that the act of 1866, and the sections of the Revised Statutes in which the provisions of that act have been preserved, have no application to telephone companies whose business is that of electrically transmitting articulate speech between different points. What rights the appellee had or has under the laws of Virginia and the ordinances of the city of Richmond is a question which the circuit court did not decide, but expressly waived. It is appropriate that that question should first be considered and determined by the court of original jurisdiction. The decree of the Circuit Court of Appeals so far as it reverses the decree of the Circuit Court is affirmed, and the cause is remanded with directions for such further proceedings in the Circuit Court as may be in conformity with the principles of this opinion and consistent with law. It is so ordered. SARAH A. OAKES, Appt., V. UNITED STATES. (See 8. C. Reporter's ed. 778-798) sustained where the claimant wholly falls to support his allegation that the vessel was captured by the insurgents [No. 19.] Argued April 20, 1898. Decided May 22, APPEAL from a judgment of the Court of See same case below, 30 Ct. Cl. 378. Statement by Mr. Justice Gray: *This was a petition under the act of Con-[779] Capture of vessel by naval forces of United 1. 2. The capture of a vessel while dismantled and lying by the bank of a river, when made by the naval forces of the United States, although under the general control of the War Department, is not deemed to have been made by the Army, instead of the Navy. A libel alleging that the seizure of a vessel "was made for the reason that said steamer was used, by and with the knowledge and consent of the owner, in aiding the present rebellion against the United States, contrary to the act of August 6, 1861," sufficiently alleges that she was so used with the knowledge and consent of her owner, as well as that she was seized for that reason. 8. A vessel purchased by the Confederate government from an agent of the owner, although without the owner's authority, consent, or knowledge, is not, when captured by the United States, within the provisions of the act of Congress of March 3, 1800, providing for the restoration to the owners of private vessels recaptured from the enemy, as there can be no recapture where there has been no capture. 4. Certified copies from the Confederate Ar- 5. The claim of the heir at law of a part own- 74 into a gunboat; and Whereas it is claimed at the time of such taking one Hugh Worthington, then of Metropolis, Massac county, Illinois, but since deceased, was the owner of three-fifths interest in said steamer, and no compensation has been paid to said Hugh Worthington or his heirs; and Whereas his daughter, Mrs. Sarah A. Oakes, Be it enacted by the Senate and House of Sec. 2. That in case judgment shall be rend- surgents, and recaptured by the United | was there begun to transform her into a States, during the war of the rebellion. gunboat for use in the Confederate service. On February 7, 1862, while she was lying under the bank of the Tennessee river near Cerro Gordo, and being converted into a gunboat for use in the Confederate service, with the iron and other materials therefor on board, and having been dismantled, and her The facts of the case, as found by the court of claims, were in substance as follows: At the outbreak of the War of the Rebellion, the steamboat Eastport, of 570 tons burthen, duly enrolled at Paducah, Kentucky, and commanded by Captain Elijah Wood, was plying between the ports of Nash-upper works, cabin and pilothouse cut away, ville, Tennessee, and New Orleans, Louisiana, engaged in the cotton trade. After the beginning of the war, she continued, under Wood's command, to ply between points on the Ohio river until May, 1861, when, in consequence of the blockade of the Mississippi river by the United States forces at Cairo, Illinois, she was tied up at Paducah, and there remained until August, 1861, undergoing extensive repairs under the orders of Captain Wood, and of Hugh Worthington, who was the owner of three fifths of her, the remaining two fifths being owned by two other persons. About the last of August, or early in Sep[781]tember, 1861, when the United States forces were about to take possession of Paducah, and while the Eastport was in the possession and under the control of Captain Wood, he took her, with a small crew, without Worthington's knowledge or consent, from Paducah up the Tennessee river to a place near the mouth of the Sandy river, a few miles above Fort Henry, within the lines of the Confederate forces. Captain Wood returned to Paducah a few months afterwards, and continued to reside there until his death, about the close of the war. What disposition he made of the Eastport does not appear, although papers in the Confederate Archives Office show what is stated in the certificate copied in the margin.t Nor does it appear whether the sum of money stated therein was paid to Captain Wood, nor whether he ever rendered an account thereof to the other owners, nor whether they received any part of that sum, nor where they are, nor what has become of their interests in the Eastport, nor why they are not seek-*Foote, converted by the United States into a[783) ing payment for the value thereof. Some time between September, 1861, and [782] February 7, 1862, *the Eastport was in the possession of the Confederate forces, but whether by reason of capture, or of purchase from Captain Wood, does not appear; and before the latter date she was taken by those forces to Cerro Gordo, Tennessee, and work but before she had been completed, or had been used, or was in condition for use, in any hostile demonstration against the United States, she was boarded under the fire of the enemy (whether that fire was from the vessel or from the land does not appear) and captured by detachments of men in small boats from three United States gunboats, commanded by a lieutenant in the Navy, and part of the naval forces on the western waters, then under the control of the War Department, and commanded by Captain Andrew H. Foote, who was serving under a commission from the President of August 5. 1861, appointing him a captain in the Navy, and under an order from the Secretary of the Navy of August 30, 1861, directing him "to take command of the naval operations upon the western waters, now organizing under the direction of the War Department, and to proceed at once to St. Louis, to place himself in communication with Major General Fremont, commanding the army of the West, and to co-operate fully and freely with him as to his own movements, and to make requisitions upon the War Department through him. Immediately after the capture, Captain Foote reported his operations, together with the report of the lieutenant commanding the gunboats, to the Secretary of the Navy, who communicated them to Congress. At the time of the capture, no land forces were near the scene thereof, or took any active part therein. The Eastport was brought by her captors to Mound City, Illinois, on the Ohio river, arriving there about February 26, 1862; and was there, on the recommendation of Captain gunboat; and about August, 1862, went into undergoing the necessary alterations to convert Under date of January 16, 1862, J. P. Benja- †Under date of October 31, 1861, General L. Polk, C. S. Army, telegraphed from Columbus, Ky., to the Secretary of the Navy, C. S., that "the price of the steamer Eastport is $12,000:"min, and on the same date J. P. Benjamin, acting Secretary of War. C. S., telegraphed to General L. Polk directions to "buy the steamer Eastport If thought worth $12,000 demanded." Under date of November 28, 1861, General L. Polk, in a letter from Columbus, Ky., addressed to General A. S. Johnston, C. S. A., stated that he bought the steamer Eastport by authority of the Secretary of the Navy. Under date of January 5, 1862, General L. Polk wrote to J. P. Benjamin, Secretary of War, C. S., as follows: "By virtue of the authority from the War Department of October 31, I bought the steamer Eastport, and she is now Under date of February 2, 1863, General Polk, in a statement to the C. S. Secretary of War of the disbursement of certain moneys, gives as one item, "Am't expended in purchase of steamer Eastport as per receipt of Major Peters, A. Q. M., $9,688.92." No further information on the subject of the within inquiry has been found in sald archives. By authority of the Secretary of War: F. C. Ainsworth, |