Page:Federal Reporter, 1st Series, Volume 3.djvu/431

 434 FBDEEÀL EEPORTEE. �McCeary, 0. J. The demurrer to the original bill having been sustained on the ground of the immorality of a materiai part of the contract,* set out and made the sole basis of the relief sought, the plaintiiï filed an amended bill, which is now before me for consideration ; oounsel having agreed that the motion to dissolve the injunction shall be regarded as a general demurrer to the amended bill. The part of the con- tract held vicions is the clause providing for the transmission free of charge of private, social, and family messages of the executive officers of the railway company. �The amended bill makes certain averments, intended to show the right of plaintiff to recover, notwithstanding the in- sertion of this vicions clause in the original contract. �The question to be determined is the suffioiency of these averments, or of any of them, to entitle plaintiff to the relief Bought. �1. The plaintiff now claims that it is rightfully in posses- sion of the right of way, and of the telegraph line in question, by virtue of the provisions of the act of congress of July 2, 1864, entitled "An act for increased facilities of telegraph communication between the Atlantic and Pacific states, and the terri tory of Idaho." I had occasion to comment upon this act in my opinion upon the demurrer to the original bill, and the conclusion reached was that the act was intended to authorize the United States Telegraph Company, either with or without the consent of the railway company, to construct and operate a line of telegraph along and upon the right of way of the railway company. Whether this right was as- signed and transferred to the present plaintiS by a valid con- tract, was not considered, and that question is now to be determined. The allegations of the amended bill, being admitted, sufBciently show that the United States Telegraph Company had, by virtue of the laws of New York, by which it was created, a right to make an assignment and transfer of ail its franchises and property to another telegraph com- pany. �Counsel for respondents insist, however, that this right was �*See anie, 1 ����