Page:Federal Reporter, 1st Series, Volume 3.djvu/13

 6 FBDEEAL EEPOKTEE, �in accordance therewith to the line of said railroads and branches, such transfer shall, for ail purposes of the act re- ferred to, be held and cousidered a fulfilment on the part of said railroad companies of the provisions of the act in re- gard to the construction of a telegraph line; and in case of a disagreement said telegraph Company are authorized to remove their line of telegraph along and upon the line of railroad therein contemplated, without prejudice to the rights of said railroad companies." 13 Statutes, 374. �It is stated, in argument by counsel, that complainant is the assignee and successor of the said United States Tele- graph Company, and possessed at the time of making the contract in question, and still possesses, the rights conferred upon that company by the section just quoted; and it is claimed that under this act, if not under the original Pacific Eailroad charter, the raûway conipany had power to make the contract. These facts are not averred in the bill, but as the question of the true construction of the section above quoted has been discussed, I deem it best to state my views thereon, especially in view of the fact that, under the allega- tion in the bill that the railway company had power to enter into the contract, it is the duty of the court to construe any Btatute under which that power is claimed. I cannot, how- ever, in the present state of the record, determine whether the rights of the United States Telegraph Company had been legally transferred to the complainant. That question can only be decided upon consideration of the assignment or con- veyances under which the transfer was made, and of the laws authorizing such instruments to be executed, and these are not before me. I can only determine, so far as I am con- cerned, the question whether the railway company could, under the act above quoted, have entered into a contract like the one in controversy with the said United States Telegraph Company. By the law as it stood before the passage of the act of 1864, which is now to be construed, the Kansas Pacific Bailroad Company, Eastern Division, was bound to construct a telegraph line of its own. The act of 1S64 allowed it to relieve itself of that duty and to devolve it upon the United ����