Page:Federal Reporter, 1st Series, Volume 4.djvu/301

 ■W. V. TELEGEAPH CO. ». K. P. EY. 00. 287 �and, îf the consolidation shall be recognized, then it may be- come necessary to determine whether the of&cers of the Con- solidated Company could lawfuUy disobey a writ directed to one of the companies forming euch Consolidated company. The argument at the bar was not directed to those questions, but rather to the case made in the supplemental bill to en- join the defendants from any further use of the telegraph line, except as provided in the contract. �The validity and force of the consolidation is not neces- sarily involved in the issuance of a new writ, for the Consoli- dated company, if properly organized, can claim no higber or better right than its predecessor, the Kansas Pacific Com- pany. Upon the case made in the supplemental bill, the rights of ail parties are referred to the contract, and, accord- ingly, that instrument bas been attacked by defendants upon several grounds, which -will now be discussed. �And, first, it is aUeged that the railway company, having authority from congress to construct a line of telegraph as well as a railroad, could not delegate such authority to an- other corporation, charged by law with the duty of construct- ing a telegraph for the use of the general government a'nd the public. It is said that the railway company could not, by contract or otherwise, substitute anotber in the performance of that duty. The contract shows that the line was to be built as required by the aot under which the railway company was organized, and aecepted by the government in fulfilment of that company's obligations, as by the act of congress that company is required to operate its road and telegraph line in a particular manner, and penalties are prescribed for failure therein. 18 St. 112. It is urged that the company must be vigilant in the performance of its duties, and cannot commit into other hands the functions with which it is itself endowed. If, however, ail this should be conceded, its relevancy to the present controversy is not apparent. The telegraph company bas not assumed to act under or in pursuance of the authority given to the railway company in respect to telegraph lines. It claims to be a corporation organized in the state of New York, with power inherent, to construct and maintain tele- ����