Page:Federal Reporter, 1st Series, Volume 3.djvu/734

 W. tJ. TKLEGRAPH CO. ». U. P. BT. CO. 727 �successor in right and in power of the United States Tele- graph Company, mentioned in this aot ; and that by virtue of the fourth section of the act the railroad company had the right to make the contract whioh was made, and was by that section relieved from the obligation to construot and operate a line of telegraph for the public use. It does not admit, in my opinion, of any reasonable doubt that if the United States Telegraph Company mentioned in that statute, or any company which had the same rights and authoritiea on that subject that that company had, entered into an agree- ment with the Pacifie Eailroad Company, or any of its branches built under the authority of the original act of 1862, which secures the proper construction and operation of a line of telegraph along ita road for the benefit of the public, that it is absolved from the obligation imposed upon it by the act of 1862, to construct and to operate such a telegraph line. It was manifestly the design of this act of 1864 to enablo the United States Telegraph Company to become substituted, by a proper arrangement with the Pacific Eailroad Company and its branches, to the right to build a telegraph line along the track and right of way of those railroad eompanies, and- thereby to relieve those eompanies from the obligation to build and operate such a line. �If, therefore, the contract is one which provides for the erection of a telegraph line to answer both the purposes of the public and of the railroad company, it is one which is authorized by this statute, and which relieved the railroad company from the obligation to construct and build another line, or any line. That such is the proper construction of the fourth section of this act of 1864, is obvious from an exam- ination of section 19 of the original act of 1862. That sec- tion provided "that the several railroad eompanies berein named are authorized to enter into an arrangement with the Pacific Telegraph Company, the Overland Telegraph Com^ pany, and the California Telegraph Company, so that the present line of telegraph between the Missouri river and San Francisco may be moved upon or along the line of said rail, xoad and branches as fast as said road and branches are ����