Page:Federal Reporter, 1st Series, Volume 3.djvu/12

 WESÏEKN UNION TKLEGBAPH 00. V. U. P. ET. CO. 5 �contract not authorized thereby, anything in the original state charter to the contrary notwithstanding. �3. This brings me to the question whether the contract set ont in the bill was authorized by the charter of the Union Pacific Eailroad Company, and its amendments. I bave recently had occasion to consider the proper construction of those acts, and the powers of the companies authorized to construct and operate lines of railroad and telegraph under them, and the conclusion reached was that the Union Pacific Eailway Company was not authorized to alienate its tele- graph franchise, or any property nscessary to the performance by it of the duties imposed by those acts. Telegraph Co. v. Railrpad Co. 1 Fed. Eep. 745. �The contract now before me provides not merely for grant- ing to the telegraph company the right of way along the line of the railway, but it also provides that the railway company Bhall do no commercial or paid telegraph business from any station where the telegraph company shall have an office, without the consent of the latter. This, in my judgment, amounts to an alienation of the right to transact business for the public generally for pay, as a telegraph company, and that right is the most valuable part of the franchise of a tel- egraph company. It follows that the contract is beyond the power of the railway company, unless the authority to make it can be derived from the act of 1864, which will next be considered. �4. The fourth section of an act "for increased facilities for telegraph communication between the Atlantic and Pacific states and the territory of Idaho," approved July 2, 1864, is as follows : �"Andbe it furtker enacted, that the several railroad compa- nies authorized by acts of congress of July 1, 1862, are au- thorized to enter into arrangements with the United States Telegraph Company so that the line of telegraph between the Missouri river and San Francisco may be made upon and along the line of said railroad and branches as fast as said roads and branches are built; and if said arrangements be entered into, and the transfer of said telegraph line be made ����