privileges ought to be granted to telephone
companies, such a grant would come within
the scope of legislative rather than adminis-

1866 nor what it may or ought now to do,
but what was in its mind when enacting the
statute in question. Nothing was then dis-
tinctly known of any device by which articu-trative power." 19 Ops. Atty. Gen. 37.
late speech could be electrically transmitted
or received between different points, more or
less distant from each other, nor of com-
panies organized for transmitting messages
in that mode. Bell's invention was not made
public until 1876. Of the different modes
now employed to electrically transmit mes-
sages between distant points, Congress in
1866 knew only of the invention then and
now popularly called the telegraph. When,
therefore, the act of 1866 speaks of telegraph
companies, it could have meant only such
companies as employed the means then used
or embraced by existing inventions for the
purpose of transmitting messages merely by
sounds of instruments and by signs or writ-

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 company? May the company, of right, fill every street and alley in every city or town in the country with poles on which its wires are strung, or may the local authorities forbid the erection of any poles at all? May a company run wires into every house in a city, as the owner or occupant may desire, or may[777] the local authorities limit the number of wires that may be constructed and used within its limits? These and other questions that will occur to everyone indicate the confusion that may arise if the act of Congress, relating only to telegraph companies, be so construed as to subject to national control the use and occupancy of the streets of cities and towns by telephone companies, subject only to the reasonable exercise of the police powers of the state. But even if it were conceded that no such confusion would probably arise, it is clear that the courts should not construe an act of Congress relating in terms only to "telegraph" companies as intended to confer upon companies engaged in telephone business any special rights in the streets of cities and towns of the country, unless such intention has been clearly manifested. We do not think that any such intention has been so manifested. The conclusion that the act of 1866 confers upon telephone companies the valuable rights and privileges therein specified is not authorized by any explicit language used by Congress, and can be justified by implication only. But we are unwilling to rest the construction of an imact of Congress upon implication merely; particularly if that construction might tend to narrow the full control always exercised by the local authorities of the states over streets and alleys within their respective jurisdictions. If Congress desires to extend the provisions of the act of 1866 to companies engaged in the business of elec trically transmitting articulate speech-that is, to companies popularly known as telephone companies, and never otherwise designated in common speech-let it do so in plain words. 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

In 1887 the Postmaster General submitted to the Attorney General the question whether a telephone company or line, offering to accept the conditions prescribed in title LXV of the Revised Statutes (being the act of 1866), could obtain the privileges therein specified. Attorney General Garland replied: "The subject of title LXV of Revised Statutes is telegraphs. In all its sections the words 'telegraph,' 'telegraph company' and 'telegram,' define and limit the subject of the legislation. When the law was made, the electric telegraph, as distinguished from the older forms, was what the lawmakers had in view. The electric telegraph, when the law was made, as to the general public, transmitted only written communications. Its mode of conduct is yet substantially the same. This transmission of written messages is closely analogous to the United States mail service. Hence the acceptance of the provisions of the law by the telegraph company was required to be filed [776]with the Postmaster General, *who has charge of the mail service. Under the several sections embraced in the title, in consideration of the right of way and the grant of the right to pre-empt 40 acres of land for stations at intervals of not less than 15 miles, certain privileges as to priority of right over the line, also the right to purchase, with power to annually fix the rate of compensation, were secured to the government. Governmen-portant tal communications to all distant points are almost all, if not all, in writing. The useful government privileges which formed an important element in the legislation would be entirely inapplicable to telephone lines, by which oral communications only are transmitted. A purchase of a telephone line certainly was not in the mind of the lawmakers. In common and technical language alike, telegraphy and telephony have different sig

nifications. Neither includes all of the other. 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

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.




(See 8. C. Reporter's ed. 778-798)

[blocks in formation]

Statement by Mr. Justice Gray:

*This was a petition under the act of Con-[779]
gress of July 28, 1892, chap. 313 (copied
in the margint), filed in the court of claims [780]
January 9, 1895, by Sarah A. Oakes, the
heir at law and next of kin of Hugh Worth-
ington, to recover compensation for his in-
terest in the steamboat Eastport, alleged in
the petition to have been captured by the in-
†An Act to Confer Jurisdiction on the Court
of Claims to Hear and Determine the Claim
of the Heir of Hugh Worthington for His In-
terest in the Steamer Eastport.

Capture of vessel by naval forces of United
Whereas it is claimed the steamer Eastport
States-act of August 6, 1861-when ves-
was taken by the United States, Anno Domini
sel is not recaptured from the enemy-eighteen hundred and sixty-two, and converted
Confederate archives, when evidence
claim for compensation for vessel captured
by the insurgents.




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.

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 Archives Office, of official communications between high civil and military officers of the Confederate States are competent evidence to show that the Confederate authorities obtained possession of a vessel by purchase, and not by capture or by other forcible and compulsory appropriation


The claim of the heir at law of a part owner, for compensation for his interest in a vessel alleged to have been captured by the insurgents and recaptured by the United States during the War of the Rebellion, cannot be 174 U. S. U. S., Book 43.


into a gunboat; and

Whereas it is claimed at the time of such
taking one Hugh Worthington, then of Metropo-
lis, 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,
of Metropolis, Illinois, claims that Hugh Worth-
ington was a loyal citizen, that she is his only
heir at law, and is justly entitled to receive
from the United States compensation for the
value of her father's interest in said steamer:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That full jurisdiction is hereby conferred upon the court of claims to hear and determine what are the just rights in law of the said Sarah A. Oakes, as heir of Hugh Worthington, deceased, and that from any judgment so entered by said court of claims either party may appeal to the Supreme Court of the United States, for compensation for the value of said Worthington's interest in said steamer Eastport. That upon proper petition being presented by said Sarah A. Oakes, her heirs, executors. to said court, said court is authorized and directed to inquire into the merits of said claim, and if on a full hearing the court shall find that said claim is just, the court shall enter judgment in favor of the claimant and against the United States for whatever sum shall be found to be due.



Sec. 2. That in case judgment shall be rendered against the United States, the Secretary of the Treasury shall be, and he is hereby, authorized and directed to pay the claimant, her heirs, executors, administrators, whatever sum shall be adjudged by the court to be due out of any money in the treasury not otherwise appro27 Stat. at. L. 320. priated. 1169


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 gun-
boat for use in the Confederate service, with
the iron and other materials therefor on
board, and having been dismantled, and her
upper works, cabin and pilothouse cut away,
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 ves-
sel 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 wa-
ters, then under the control of the War De-
partment, and commanded by Captain An-
drew 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 Gen-
eral Fremont, commanding the army of the
West, and to co-operate fully and freely with
him as to his own movements, and to make
upon the War Department
through him. Immediately after the cap-
ture, 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 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 burthen, duly enrolled at Paducah, Kentucky, and commanded by Captain Elijah Wood, was plying between the ports of Nash 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. gunboat; and about August, 1862, went into commission as such with a full complement of officers and men of the Navy; and continued in the service as part of the Mississippi squadron until April, 1864, when she was sunk by running upon a torpedo, and was blown up by her commander to prevent her capture by the Confederate forces. The undergoing the necessary alterations to convert her into a gunboat."

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

Under date of January 16, 1862, J. P. Benja-
min, Secretary of War, C. S.. wrote to General
"I shall order the neces-
L. Polk as follows:
sary funds forwarded at once for the Eastport."
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,
Colonel U. S. Army, Chief of Office.

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

†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;" 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

[ocr errors][ocr errors][ocr errors]

Eastport and all other vessels of the Navy | United States and George D. Wise, the in-
performing services on the western waters former herein."
were under the control of the War Depart-
ment until October 1, 1862, when they were
turned over to the Navy Department, pur-
suant to the act of Congress of July 16, 1862,
chap. 185, 12 Stat. at L. 587.

On July 17, 1862, in the district court of
the United States for the southern district
of Illinois, the district attorney of the Unit-
ed States filed a libel in admiralty_against
the Eastport, alleging "that on or about the
20th day of June, A. D. 1862, in the Mis-
sissippi river near Columbus, Kentucky,
there was seized by George D. Wise, captain
and assistant quartermaster, with gunboat
flotilla (and which he hereby reports for
condemnation), the steamer Eastport, and
which was brought into said district. Said
seizure was made for the reason that said
steamer was used by and with the knowledge
and consent of the owner in aiding the pres-
ent rebellion against the United States, con-
trary to the act of August 6, 1861. The
said attorney therefore asks that process of
attachment may issue against said steamer,
and the monition of this honorable court,
and that all persons having an interest in
the same may be made parties herein, and
that on a final hearing of this case your
honor will adjudge and decree condemnation
of said boat and order that the same may be
sold." Thereupon the court issued a moni-
tion, reciting that the libel had been filed by
the district attorney and Captain Wise; and
commanding the marshal to attach the East-
port and detain her in his custody until the
further order of the court; and to give no-
tice by publication in a certain newspaper
published at Springfield in that district for
fourteen days before the day of trial, "and by
notice posted up in the most public manner
for the space of fourteen days at or near the
place of trial, of such seizure and libel, to all
[784]persons claiming the said steamer Eastport,
boats, tackle, apparel, and furniture, or
knowing or having anything to say why this
court should not pronounce against the
same, according to the prayer of the said li-
bel," to appear before the court at Spring-
field on September 2, 1862. The marshal's
return on the monition stated that by vir-
tue thereof he had "attached the within-
named boat, and made proclamation of the
same;" and notice was published as ordered.
And on that day the court entered a decree,
reciting the attachment and notice, and that,
notwithstanding proclamation made, no one
had appeared or interposed a claim; and ad-
judging "that the default of all persons be,
and the same are, accordingly hereby en-
tered, and that the allegations of the libel
in this cause be taken as true against said
property, and that the same be condemned
as forfeited to the United States," and be
sold by the marshal. Pursuant to that de-
cree the Eastport was sold October 4, 1862,
by the marshal to the United States for the
sum of $10,000, which, after deducting al-
lowances to the clerk, to the marshal, and to
the district attorney, was ordered by the
court to be "equally divided between the

Of those proceedings, Hugh Worthington had no notice or knowledge until after the sale of the vessel under them; but whether her other owners or Captain Wood had any does not appear.

Before and throughout the war, Worthington was a citizen and resident of Metropolis, Illinois, about ten miles above Paducah, and was loyal to the United States, and gave no aid or comfort to the rebellion. He died in March, 1876, intestate and without property, and having received no compensation from the United States for the use or value of the Eastport. The claimant, Sarah A. Oakes, is his daughter, and his sole surviving heir at law and next of kin.

When Captain Wood ran the Eastport up the Tennessee river, she was worth $40,000. When she was captured by the United States forces, she was worth $30,000. During the time she was used by the United States, a fair and reasonable rental for her was $150 a day.

*The court of claims decided that the claim-[785] ant was not entitled to recover against the United States, and dismissed the petition. 30 Ct. Cl. 378. The claimant appealed to this court.

Mr. John C. Fay for appellant.

Messrs. Louis A. Pradt, Assistant Attorney General, and John G. Capers for appellee.

*Mr. Justice Gray, after stating the case[785] as above, delivered the opinion of the court:

The special act of Congress of July 28, 1892, chap. 313, under which the petition in this case was filed, confers jurisdiction upon the court of claims "to hear and determine what are the just rights in law" of the claimant, as the daughter and heir at law of Hugh Worthington, to compensation for the value of his interest in the steamboat Eastport, alleged to have been taken by the United States in 1862, and converted into a gunboat; and authorizes and directs that court, upon her petition, "to inquire into the merits of said claim, and if on a full hearing the court shall find that said claim is just, to render judgment in her favor and against the United States for whatever sum shall be found due. 27 Stat. at L. 320..

claim is just" is the same as the question Under this act, the question whether "said "what are the just rights in law" of the claimant as Worthington's daughter and question what had been his legal right to heir; and this necessarily depends upon the compensation from the United States for the value of his interest in the vessel.

The act neither recognizes the claim as a valid one, nor undertakes to pass upon its validity; but simply empowers the court of claims to hear and determine whether the claim is valid or invalid; and the determination of that issue embraces not only the questions whether the claimant was the daughter and heir at law of Worthington, whether he was a loyal citizen of the United States, whether he was the owner of three

[ocr errors]

court of claims proceeded were that by the Army appropriation act of July 17, 1861 (12 Stat. at L. 263, chap. 6), there was appropriated for "gunboats on the western rivers, one million dollars;" that, at the time of the capture of the Eastport, the gunboats and the naval forces of the United States on those rivers were under the control of the War Department; that she was on inland waters, and could not be regarded as maritime prize; that she was lying dismantled by the bank of a river, where the seizure might as well have been made by a detachment from the Army, as by one from the Navy; and that, in view of these facts, the Eastport must be considered as having been captured by the Army.

In support of that conclusion, reference was made to United States V. 269 1-2 Bales of Cotton, Woolw. 236. But that case was wholly different from the case at bar. In that case, a battalion of cavalry, commanded by an officer of the Army of the United States, went in vessels in the service of the United States up the Mississippi river, and landed in the state of Mississippi, and penetrated into country in the control of the Confederate forces, and, after a conflict with them, took from their possession a quantity of cotton, and brought it by the river to the state of Arkansas; and Mr. Justice Miller,[788] sitting in the circuit court, held that the cotton so captured was not within the jurisdiction of a prize court. The grounds of his decision are sufficiently shown by the follow. ing extract from his opinion:

"It is not supposed or alleged that any of these vessels were officered by government officers. They were not even armed vessels, and could not take part in any action, or contribute in any manner by belligerent force to the capture. It is not shown that they remained after they landed the forces; and the fair inference is that they did not. It is averred that the cotton was conveyed by the soldiers to the river, and that it was taken thence to the state of Arkansas; but it is not alleged that it was so taken by the vessels. In short, the entire statement is consistent with the fact that the vessels and crews were in the employment of the War Department, and were used merely as transports to carry the troops; and it is consist

By the law of nations, as recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors as soon as they have reduced the property to firm possession; but when such property is captured by naval forces, a judi[787]cial decree of condemnation is usually necessary to complete the title of the captors.ent with no other supposition. It is also 1 Kent, Com. 102, 110; Halleck's Interna- evident that the capture was not made on tional Law, chap. 19, § 7, chap. 30, § 4; Kirk the banks of the river, but some distance v. Lynd, 106 U. S. 315, 317 [27: 193, 194]. inland, where the vessels could render no other assistance than to land the forces, and receive them again. I cannot conceive that the employment by the government of unarmed steamboats, for the mere purpose of transporting troops from one point to another on the Mississippi river, can render every capture made by the troops or detachments so transported prize of war, and let in the crews and officers of those vessels to a share of the prize money. Such vessels are in no sense war vessels, and are neither expected nor fitted to take part in engagements." Woolw. 256, 257.

In the case at bar, on the other hand, it appears, by the facts found by the court of claims, that the Eastport, while water

fifths of the Eastport, and whether the vessel was taken and applied to the use of the United States, but all other questions, of law or of fact, affecting the merits of the claim. United States v. Cumming, 130 U. S. 452 [32: 1029].

The leading facts of the case, as found by the court of claims, are as follows: Worth ington was a loyal citizen of the United States, residing at Metropolis in the state of Illinois; and the claimant was his daughter and only heir at law. Early in the war of the rebellion, in consequence of the blockade of the Mississippi river by the forces of the United States, the Eastport was tied up at Paducah in the state of Kentucky, her home port, undergoing extensive repairs under the orders of her master, Captain Wood, and of Worthington, who owned three fifths of her. She was afterwards taken by Wood, without Worthington's knowledge or consent, up the Tennessee river within the lines of the Confederate forces, and came into their possession; and while in their possession, and being transformed into a gunboat for use in the Confederate service, having on board the iron and other materials therefor, and having been dismantled, and her upper works, cabin, and pilot-house cut away, but before she had been completed or used, or was in condition for use, in any hostile demonstration against the United States, she was captured by part of the naval forces of the United States on the western waters, then under the control of the War Department. No land forces took part in the capture, or were in the neighborhood at the time. The Eastport was immediately brought by her captors to Mound City, Illinois, and was afterwards converted by the United States into a gunboat, and put in commission in the Navy as such.

The questions of law presented by the record are not free from difficulty.

The Eastport, at the time of her capture by the forces of the United States, was in the hands of the Confederate forces, and was being transformed into a gunboat for use in the Confederate service, with the iron and other materials therefor on board. Although not yet in condition for hostile use, she was clearly intended for that use. Consequently if, as the court of claims held, her capture was made by the Army of the United States, it cannot be doubted that the capture was at once complete upon her being taken into the possession of the national forces, and brought by them to Mound City, Illinois, in February, 1862.

The grounds on which the decision of the

« ForrigeFortsett »