Page:Federal Reporter, 1st Series, Volume 1.djvu/759

 A. 4 P. TEL. 00. V. U. P. KT. CO. 761 �cerned, as one continuons Une, and whioli gives a right of action to any party aggrieved, "in case of failure or refusai of the Union Pacific Eailroad Company, or either of said branches, to eomply with this act or the acts to which this is amendatory." �I conclude that the charter of the Union Pacific Eailroad Company devolved upon it the duty of constructing, operat- ing and maintcining a line of telegraph for commercial and other purposes, and that this is in its nature a public duty. I am further of the opinion that, by the provisions of the contract of September 1, 1869, and of December 20, 1871, the railroad company undertook to lease or alienate property •which was necessary to the performance of this duty. The consideration for these contracts is declared to be "the demise of their telegraph lines, property and good-will, and of the rights and privileges, in the manner hereinafter specified," etc., and the property demised by the railroad company is ail its telegraphie lines, wires, pôles, instruments, offices, and ail other property by it possessed, appertaining to the busi« ness of telegraphing, for the purpose of sending messages and doing a general telegraph business. The lessee was to hold during the whole term of the charter of the railroad com- pany and any renewal thereof. There is inserted a stipula- tion that the lessee shall perform ail the duties imposed or that may be iraposed upon the railroad company by their charter or by the laws of the United States. But, as already intimated, I do not think this latter clause makes the con- tract good. The railroad company was not at liberty to transfer to others those important duties and trusts which it, for a large consideration, and for a great public purpose, had undertaken to perform. It certainly could not divest itself of these powers and duties, and devolve them upon the plaintif, without express authority from congress. �3. But if the contracts in question are not ultra vires, by reason of the transfer of property necessary to the perform- ance by the railroad company of its public duties, they are so because they attempt to transfer certain franchises of the said company. The right to operate a telegraph line, and to fix ��� �