Western Union Telegraph Company v. Pennsylvania Railroad Company/Opinion of the Court

By an act of Congress approved July 7, 1838 [5 Stat. at L. 271, chap. 172] and by cubsequent acts (March 3, 1853, 10 Stat. at L. 225, chap. 146; Rev. Stat. § 3964, U.S.C.omp. Stat. 1901, p. 2707; June 8, 1872 [17 Stat. at L. 283, chap. 335,]) railroads within the limits of the United States were made post routes or roads.

By act of March 1, 1884, it is provided 'that all public roads and highways, while kept up and maintained as such, are hereby declared to be post routes.' 23 Stat. at L. 3, chap. 9, U.S.C.omp. Stat. 1901, p. 2708.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any telegraph company now organized, or which may hereafter be organized under the laws of any state in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States: Provided, That such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption, through which its said lines of telegraph may be located, as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.

'Sec. 2. And be it further enacted, That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster General.

'Sec. 3. And be it further enacted, That the rights and privileges hereby granted shall not be transferred by any company acting under this act, to any other corporation, association, or person: Provided, however, That the United States may at any time after the expiration of five years from the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected.

'Sec. 4. And be it further enacted, That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance, with the Postmaster General, of the restrictions and obligations required by this act.'

The construction of this act is the fundamental question in the case. The telegraph company contends that the necessary implication from the provisions of the act is that telegraph companies may enter and appropriate for their poles and lines a part of the rights of way of railroads in invitum upon paying just compensation. In other words, that the act invests telegraph companies with the right of eminent domain. The railroad company denies this construction, and asserts that the act gives the consent of the government to telegraph companies to construct lines through its public domain and over and along its military and post roads, which are not the property of private corporations, and across navigable streams and waters. The act gives no right, the railroad company contends, to appropriate private property, but is an exercise by Congress of the national power over interstate commerce to secure telegraph companies from 'hostile state legislation or contracts violative of an announced public policy.' In other words, the contention of the railroad company is that, after the act of 1866 was passed, it 'became impossible for the states, by any legislation, to exclude telegraph companies from the post roads.' The contentions of the parties are opposed, therefore, only as to the degree of right conferred by the act. It is asserted by one party, and unqualifiedly admitted by the other, that Congress has power to grant the power of eminent domain to corporations organized for national purposes, and the arguments of the parties are addressed only to the considerations which serve to determine the intention of Congress. Both parties also claim authority for their respective contentions.

1. The act of 1866 came before this court for consideration over twenty-five years ago, in ''Pensacola Teleg. Co. v. Western U. Teleg. Co.'' 96 U.S. 1, 24 L. ed. 708. The language of the court defining the rights conferred by the act has recently been repeated and sanctioned in ''Western U. Teleg. Co. v. Ann Arbor R. Co.'' 178 U.S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867. In both cases the judgment of the court was adverse to the rights claimed under that act by the telegraph company in the case at bar. A review of those cases, therefore, and a consideration of the arguments directed against them and in support of them will constitute the most appropriate discussion of the questions now presented, and apply immediately to their solution the authority of this court.

In ''Pensacola Teleg. Co. v. Western U. Teleg. Co.'' 96 U.S. 1, 24 L. ed. 708, the legislature of Florida in 1866 granted to the Pensacola Telegraph Company 'the sole and exclusive privilege and right' of maintaining and operating lines of telegraph through certain counties of the state. In 1872 the property of the Alabama & Florida Railroad Company was transferred to the Pensacola & Louisville Railroad Company. On the 14th of February, 1873, the legislature of Florida passed an act, which was amended in 1874, authorizing the last-named company to construct and maintain a telegraph line along its railroad, and to connect with lines in and out of the state. This was in the territory embraced by the exclusive grant to the Pensacola Telegraph Company.

On the 24th of June, 1874, the Pensacola & Louisville Railroad Company granted to the Western Union Telegraph Company the right to erect a telegraph line upon its right of way, and transferred to it all the rights and privileges conferred by the act of February, 1873, and 1874. The Western Union Company immediately commenced the erection of the line, but before its completion the Pensacola Telegraph Company filed a bill to enjoin the work, on account of the alleged exclusive right of that company under its charter. Upon the hearing a decree was passed dismissing the bill, and an appeal was taken to this court. The Western Union Telegraph Company had accepted the act of 1866, and claimed to erect and maintain a telegraph line under its agreement with the Pensacola & Louisville Railroad Company, and under the provisions of that act. The case, therefore, presented an issue between rights asserted under a statute of Florida and rights given and protected by the act of 1866. The issue was important. The act of 1866 was presented for the first time for interpretation, and upon it depended not only the private rights of the contending companies, but the more serious conflict of powers derived from the national and state governments. The questions, therefore, which bore on these issues called for, and, it is evident from the opinion of the court, received, careful attention.

The first of these questions was whether the act of 1866 was a grant to telegraph companies of portions of the public domain and of rights in the public domain, or a grant of rights having a broader field of exercise,-a grant of rights having operation and to be exercised throughout the whole of the United States. There was a marked difference in the rights contended for, and they depended upon different powers. In the public domain the government was proprietor as well as sovereign, elsewhere only sovereign, and on its powers as sovereign there were limitations, arising not only from the rights of the states, but arising from the ownership of private property and the necessity of a grant of eminent domain to appropriate it. These limitations were of consequence in fixing exactly the rights conferred by the act of 1866, and were regarded by the court in its construction of that act.

The court declared, through Chief Justice Waite, that the act of 1866 was an exercise of the power of Congress over interstate commerce, and the power to establish postoffices and post roads, and, like other powers of the national government, could be exercised 'upon every foot of territory under its jurisdiction.' It was held, therefore, that the act was not a grant of rights only in the public domain, and the character of the rights was made unmistakable. The statute, the court said, in effect amounts to a prohibition of all state monopolies in commercial intercourse by telegraph. This is expressed more than once as the fundamental idea and sole purpose of the statute. The court further said: 'It [the statute] substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the government of the United States and its citizens, that the erection of the telegraph lines shall, so far as state interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one state for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the national government for this national privilege. To this extent, certainly, the statute is a legitimate regulation of commercial intercourse among the states, and is appropriate legislation to carry into execution the powers of Congress over the postal service.'

And this construction, making the act of 1866 merely an exercise of national power to withdraw from state control or interference commercial intercourse by telegraph, is further emphasized in the opinion and the objections to it completely answered, which were based on the ownership of the post roads by individuals or corporations, and the necessity of implying a grant of the power of eminent domain to telegraph companies to appropriate them. The court said:

'It [the act of 1866] gives no foreign corporation the right to enter upon private property without the consent of the owner, and erect the necessary structures for its business; but it does provide that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.' And again:

'No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted.'

This language and the distinctions imported by it were approved in ''Western U. Teleg. Co. v. Ann Arbor R. Co.'' 178 U.S. 239, 44 L. ed. 1052, 20 Sup. ct. Rep. 867. It was a bill in equity filed in the circuit court of Benzie county, Michigan, by a telegraph company against a railway company to restrain the latter from interfering with the rights of the telegraph company in a certain telegraph line along the right of way of the railroad. It was removed to the circuit court of the United States. The circuit court dismissed the bill, and its action was affirmed by the circuit court of appeals. 33 C. C. A. 113, 61 U.S. App. 741, 90 Fed. 379. The Western Union Telegraph Company brought the case here. The decrees of both courts were reversed, and the case remanded to the circuit court, with directions to remand the case to the state court. This was decreed on the ground that, by the statement of the complainant's (telegraph company) own case, it was not brought 'within the category of cases arising under the laws or Constitution of the United States.' We said that the bill was in effect for the specific performance of a contract. 'It is not argued,' we said, by the Chief Justice, 'by counsel for the telegraph company that the telegraph company had any right under the statute, and independently of the contract, to maintain and operate this telegraph line over the railroad company's property; and it has been long settled that that statute did not confer on telegraph compaines the rights to enter on private property without the consent of the owner, and erect the necessary structures for their business; but it does provide that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.'

And further: 'As we have said, it was not asserted in argument that the telegraph company had the right, independently of the contract, to maintain its line on the railroad company's property, and, in view of the settled construction of the statute, we could not permit such a contention to be recognized as the basis of jurisdiction.' In other words, by the decision in the Pensacola Case no such Federal question remained to be based on the act of 1866.

Counsel, however, pronounce the extracts quoted from the Pensacola Case and their repetition in the Ann Arbor Case as dicto, and urge, besides, that the irresistible logic of other cases overthrows the authority of both. Neither proposition is tenable. We have said enough to demonstrate that the language we have quoted was the deliberate resolution of the court, and we might content ourselves by observing that, as the Ann Arbor Case is the last expression of this court interpreting the act of 1866, prior cases, if not reconcilable with its exposition of that act, are superseded. We think they are so reconcilable.

One of the cases which is relied on (Western U. Teleg. Co. v. Atty. Gen. 125 U.S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961, asserted the very valuable right obtained by telegraph companies under the act of 1866, and vindicated it against a statute of Massachusetts, which provided for an injunction against the prosecution of business by the company as a means of enforcing the payment of taxes. This is the very essence of the effect given to the act of 1866 by the Pensacola and Ann Arbor Cases. The telegraph company was in occupation of the post roads of the state of Massachusetts, whether railroads or the ordinary highways does not appear. Its right to be there was not controverted, and how it got there was of no consequence. Its right to do business after and during such occupation was involved and was decided, and to this right the language of the court was addressed, and receives limitation from it. The language of the court was substantially the same as that of the act of Congress. It enforced the right given by that act, and gave to the telegraph company the protection of the national power and supremacy, and differs only in the instance, not in the principle, declared in the Pensacola Case. The telegraph company, indeed, sought for more than the mere exercise of a right. It sought to turn the act of 1866 from a mere permission to exercise a right to the creation of such an instrumentality of the national government as to be exempt from state taxation. The court rejected that view.

So also must be limited the language in ''Western U. Teleg. Co. v. Texas'', 105 U.S. 460, 26 L. ed. 1067, and United States v. Union P. R. Co. 160 U.S. 1, 40 L. ed. 319, 16 Sup. Ct. Rep. 190. In the first the distinction which was necessary to make was between intra and inter-state commerce, and to determine what rights as to the latter were conferred by the act of 1866. In the second case the efficacy of the act to prevent binding contracts against its policy was involved. The case called for that, but no more, as far as the act of 1866 was concerned. Such an agreement was set up, and under it the Western Union Telegraph Company claimed the right to exclude all other telegraph companies from the roadway of the railway company, notwithstanding the act of 1866. Mr. Justice Harlan, speaking for the court, said that such an agreement 'directly tended to make the act of July 24, 1866, ineffectual, and was, therefore, hostile to the object contemplated by Congress. ''Pensacola Teleg. Co. v. Western U. Teleg. Co.'' 96 U.S. 1, 11, 24 L. ed. 708, 711.'

We need not dissent from these views, or qualify the general language by which they were amplified and supported. Whatever rights were granted by the act of 1866 were granted to all telegraph companies, and could not be defeated by a binding contract with some one company; nor could such an agreement be used to evade or escape the commands of the statute constituting the Union Pacific Railway, passed in 1862 [12 Stat. at L. 489, chap. 120], or the supplementary act of 1888 [25 Stat. at L. 382, chap. 772, U.S.C.omp. Stat. 1901, p. 3583], which was passed by virtue of a power reserved in the act of 1862. The suit was brought to enforce the duties and obligations imposed by those statutes on the railway company. The statutes are quoted in the opinion, and the act of 1866 is referred to only as reinforcing the provisions of the statute of 1862. It was only necessary, therefore, to declare the policy of the act of 1866 as a grant of rights to all telegraph companies. The consideration of the court was not directed to anything else. The extent of the rights granted as presented in the case at bar could not have been in contemplation. They were not in issue, and it could not have been intended to anticipate and decide the controversies which might be based upon them.

St. Louis v. ''Western U. Teleg. Co.'' 148 U.S. 93, 37 L. ed. 381, 13 Sup. Ct. Rep. 485, is also urged by the telegraph company as inconsistent with the Ann Arbor Case. It is clearly not so. The case involved the validity of a charge or rental made by the city of St. Louis for the use of its streets by the telegraph company. The charge was imposed by the same ordinance that gave permission to the telegraph company to occupy the streets of the city. The telegraph company resisted the charge upon several grounds, among which were the provisions of the act of 1866, and its acceptance by the company. The charge was held to be a valid one, but on no ground which involved the consideration of the right of the telegraph company to occupy the streets. The right was not disputed. The ordinance of the city conferred it. The claim made under the act of 1866 was that it exempted the telegraph company from a payment of any compensation. But compensation was decreed on the ground that the franchise or privilege granted by the act of 1866 could only be exercised in subordination to public as well as private rights, and, as entry upon the latter could only be made upon the payment of just compensation, entry upon the former was subject to the same payment. This was all that was necessary to decide to sustain the charge made by the city. In other words, it was all that was necessary to decide to meet the extreme contention made by the telegraph company, that under the act of 1866 it was entitled to occupy the streets without charge, notwithstanding its occupation was exclusive and permanent, as the court said it was. It is manifest, to hold that there can be no entry upon property without payment of compensation is not to decide that such entry can be made upon tender of compensation. Certainly, as to private property or rights, the nonconsent of the owner is a factor to be dealt with. Nonconsent, if resolute, can only be overcome by power conferred by law; in other words, by the exercise of eminent domain. The act of 1866 was not considered in that regard.

By this review of the cases it is evident that there is no inconsistency between them and the Pensacola Case and the Ann Arbor Case, and we are brought to the discussion of the general considerations urged against the latter cases. Construed as they construe the act of 1866, it becomes meaningless, counsel say. If the act grants no rights, it is urged, except by permission of the railroad companies, it confers no more than can be obtained from the railroad companies. The objection is best answered by examples. The telegraph company had such permission in the Pensacola Case. It needed, however, the act of 1866 to make its exercise effectual against the legislation of the state of Florida. In the Union Pacific Case a claim of a monopoly by one telegraph company was answered by the act construed as a grant of rights to all companies. These examples show important results achieved by the act, and the principles of the cases may come to be applied to prevent other hostile action of states or individuals.

This court, when it came to consider the act of 1866 in the Pensacola Case, was confronted, as we are confronted now, with the serious nature of the right of eminent domain. It is indeed 'inseparable from sovereignty,' but it is accompanied and restrained by inexorable limitations. The property taken must be for a public use, and there must be compensation made for it, and compensation, whether it be regarded as part of the power or a limitation upon the power, is so far essential that the absence of a provision for it has been regarded as important in determining the intention of the legislature when a grant of such power is claimed. 1 Lewis, Em. Dom. § 240, and cases cited. We said in Sweet v. Rechel, 159 U.S. 399, 40 L. ed. 196, 16 Sup. Ct. Rep. 48, by Mr. Justice Harlan: 'It is a condition precedent to the exercise of such power [eminent domain] that the statute make provision for reasonable compensation to the owner.' Many state cases were cited, and also Cherokee Nation v. Southern Kansas R. Co. 135 U.S. 641, 34 L. ed. 295, 10 Sup. Ct. Rep. 965. The act of Congress under review in the latter case, it was contended, did not provide for compensation for the property taken. In reply, Mr. Justice Harlan, delivering the opinion of the court, said: 'The objection to the act cannot be sustained. The Constitution declares that private property shall not be taken 'for public use without just compensation.' It does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed. Whether a particular provision be sufficient to secure the compensation to which, under the Constitution, he is entitled, is sometimes a question of difficulty.' The requirements of the Constitution were held to be fully met because the act which was under consideration provided that, before the railway which was authorized should be constructed through any of the lands proposed to be taken, full compensation should be made to the onwer for all property taken, or damage done by reason of the construction of the road, and in the event of an appeal from the finding of the referee the railway company should pay into court double the amount of the award to abide the judgment.

In Kohl v. United States, 91 U.S. 367, 23 L. ed. 449, acts of Congress were considered, one providing for the acquisition of a site for a public building, the other an appropriation act. The appropriation made by the latter was 'for the purchase, at a private sale or by condemnation, of ground for a site' for the building. The real controversy in the case was whether the acts of Congress intended the site to be obtained under the authority of the state government in the exercise of its power of eminent domain, or by the United States government in its own right and by virtue of its own eminent domain. The court held the latter, and, commenting on the sufficiency of the acts to give the right, said: 'The authority here given [the first act] was to purchase. If that were all, it might be doubted whether the right of eminent domain was intended to be invoked. . . . That Congress intended more than this is evident, however, in view of the subsequent and amendatory act passed June 10, 1872 [17 Stat. at L. 352, chap. 415, U.S.C.omp. Stat. 1901, p. 2457], which made an appropriation 'for the purchase, at private sale or by condemnation, of the ground for a site' for the building.'

But in the act of July, 1866, there is not a word which provides for condemnation or compensation. The rule that when a right is given all the means of exercising it are given does not, as we have seen, apply to the extent contended for by the telegraph company. The exercise of the power of eminent domain is against common right. It subverts the usual attributes of the ownership of property. It must, therefore, be given in express terms or by necessary implication; and this was the reasoning in the Pensacola Case, and applied directly to the act of 1866. We may repeat the language of the court: 'If private property is required it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized.'

In Sweet v. Rechel, Cherokee Nation v. Southern Kansas R. Co., and Kohl v. United States, the property to which the constitutional protection was applied was property in private use. Their doctrine applies as well to private property devoted to a public use. There is no difference whatever in principle arising from the difference in the uses. A railroad right of way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co. 172 U.S. 171, 43 L. ed. 407, 19 Sup. Ct. Rep. 128. We there said that if a railroad's right of way was an easement it was 'one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.' And we drew support for this from a New Jersey case, in which state the rights of way in the case at bar are situated. We quoted New York, S. & W. R. Co. v. Trimmer, 53 N. J. L. 1, 3, 20 Atl. 761, as follows: 'Unlike the use of a private way,-that is, discontinuous,-the use of land condemned by a railroad company is perpetual and continuous.' And it is held in Pennsylvania 'that a railway company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the ground paid for to the proprietors of it.' Philadelphia & R. R. Co. v. Hummell, 44 Pa. 375, 84 Am. Dec. 457. It is 'a fee in the surface and so much beneath as may be necessary for support. . . . But whatever it may be called, it is, in substance, an interest in the land, special and exclusive in its nature.' Pennsylvania S. Valley R. Co. v. Reading Paper Mills, 149 Pa. 18, 4 Atl. 205; Philadelphia v. Ward, 174 Pa. 45, 34 Atl. 458; Pittsburgh, Ft. W. & C. O. R. Co. v. Peet, 152 Pa. 488, 19 L. R. A. 467, 25 Atl. 612.

A railroad's right of way has, therefore, the substantiality of the fee, and it is private property, even to the public, in all else but an interest and benefit in its uses. It cannot be invaded without guilt of trespass. It cannot be appropriated in whole or part except upon the payment of compensation. In other words, it is entitled to the protection of the Constitution, and in the precise manner in which protection is given. It can only be taken by the exercise of the powers of eminent domain; and a condition precedent to the exercise of such power is, we said in Sweet v. Rechel, that the statute conferring it make provision for reasonable compensation to the owner of the property taken. This condition is expressed with even more emphasis in Cherokee Nation v. Southern Kansas R. Co.

A few words more may be necessary to avoid all possible misunderstanding of the purpose for which we have cited those cases and Kohl v. United States. We have cited them, not as tests of the validity of the act of 1866, but as tests of its meaning, supporting the authority of the Pensacola Case and Ann Arbor Case. We have no occasion to consider the validity of the act of 1866 as an attempt to grant the power of eminent domain. We decide the act to be an exercise by Congress of its power to withdraw from state interference interstate commerce by telegraph. As such, of course, the act is an efficient and constitutional enactment.

Certain cases decided at circuit are cited for our consideration, and we will close this branch of our discussion by a brief review of them.

In ''Postal Teleg. Cable Co. v. Oregon Short Line R. Co.'' 104 Fed. 623, and ''Postal Teleg. Cable Co. v. Oregon Short Line R. Co.'' 114 Fed. 787, there were views expressed favorable to the contentions made in the case at bar by the telegraph company, but the judgments in both cases were ultimately rested upon the local statutes,-Idaho and Montana,-which granted the right of eminent domain to telegraph companies. We may also observe that the first case went to the circuit court of appeals of the ninth circuit. That court sustained the judgment of the circuit court, upon the statute of Idaho and upon general legal principles. It did not refer to the act of 1866. 49 C. C. A. 663, 111 Fed. 843.

In ''Postal Teleg. Cable Co. v. Southern R. Co.'' 89 Fed. 190, and ''Postal Teleg. Cable Co. v. Cleveland, C. C. & St. L. R. Co.'' 94 Fed. 234, the act of 1866 was more directly passed on. Both cases were proceedings in eminent domain,-one brought in the courts of North Carolina and removed to the circuit court of the United States; the other brought in the circuit court of the United States for the northern district of Ohio. In passing on the sufficiency of the petition in the first case, Judge Simonton said that the right of petitioner to construct its lines along the right of way of post roads of the United States was given under the act of Congress of 1866; but, he observed, the mode or method of exercising the right conferred was fixed by the laws of the several states, and it was exclusive in its character in ascertaining the amount of compensation to be allowed. The right of the telegraph company was, therefore, considered and adjudged under the North Carolina statutes.

In the second case a motion was made to dismiss on the ground that the power of eminent domain was not conferred by any law of the United States or the state of Ohio. The motion was sustained. District Judge Ricks said: 'The act of July 24, 1866, made no provision for compensation or payment for property to be taken; hence the procedure cannot be sustained by virtue of that act.' He cited the Pensacola Case, 96 U.S. 1, 11, 24 L. ed. 708, 711.

''Western U. Teleg. Co. v. Ann Arbor R. Co.'' 33 C. C. A. 113, 61 U.S. App. 741, 90 Fed. 379, and St. Paul, M. & M. R. Co. v. ''western U. Teleg. Co.'' 55 C. C. A. 263, 118 Fed. 497, were respectively decided by the circuit court of appeals of the sixth circuit and the circuit court of appeals of the eighth circuit. It is difficult to reconcile them. In one it was decided, following the authority of the Pensacola Case, that the telegraph company could not occupy the line of the defendant's railroad without its consent or that of some predecessor in title. This was wanting. In the other it was conceded that the right of entry upon private property was not conferred by the act of 1866, without the owner's consent, yet held that, as consent had been given, no reason could be perceived why a court of equity should compel a removal of the telegraph company's lines from the railway's right of way, 'especially where it appears that no express agreement was made that they should be removed when its lines were erected.' 2. It is contended by the telegraph company that the charters under which the several railway companies constituting the system of the railroad company were organized expressly created them 'public highways,' and that in the acquisition of land for their purposes they were public agents, 'and the land was taken by the government, and in the eye of the law as completely subject to public uses as though it had been taken by the state itself,'-that is to say, if we understand the argument, have become highways in the full sense of that word. And counsel further say the difference between them and ordinary highways 'is not a legal difference, but is the difference of the kind of use to which the highway is subject,-in the one case, wheel vehicles drawn by horses; in the other, to steam vehicles drawn by locomotives along and upon iron rails.' They are subject, therefore, it is urged, as ordinary highways and streets of a city are subject, to the control of Congress by virtue of its power over interstate commerce.

Counsel in advancing the argument exhibits a consciousness of taking an extreme position. It would seem, certainly if considered with other parts of their argument, to make a railroad right of way public property. To that extreme we cannot go, for the reasons which we have already indicated. The right of way of a railroad is property devoted to a public use, and has often been called a highway, and as such is subject, to a certain extent, to state and Federal control; and for this many cases may be cited. But it has always been recognized, as we have pointed out, that a railroad right of way is so far private property as to be entitled to that provision of the Constitution which forbids its taking, except under the power of eminent domain and upon payment of compensation. The right of way of a railroad was recognized as private property in the Pensacola Case, and we are brought back to the main question,-the interpretation of the act of July, 1866, and upon that we have sufficiently dilated.

It follows from these views that the act of 1866 does not grant the right to telegraph companies to enter upon and occupy the rights of way of railroad companies, except with the consent of the latter, or grant the power of eminent domain. Nor does the statute of New Jersey make those rights of way public property so as to subject them to such occupation under the provisions of the act of 1866.

It is admitted that the statutes of New Jersey do not confer the right of eminent domain upon the telegraph company.

3. In view of our conclusion, it is not necessary to consider the question whether, if the power of eminent domain were granted by the act of 1866, it would be within the competency of a court of equity to ascertain compensation, or that compensation might be determined at law. That question was pertinent in Kohl v. United States. It is not pertinent in this case. The acts of Congress passed on in Kohl v. United States, as we have seen, provided for the appropriation of a site for a public building by purchase or by condemnation. By the act of 1866 power of condemnation is not given, and, of course, methods of procedure are not involved in its construction.

It is equally unnecessary to consider the questions which might arise if the state of New Jersey gave the right of eminent domain to the telegraph company. It is conceded by counsel that such right does not exist, and it happens that under the policy of New Jersey the right of way of the railroad company enjoys in that state immunity from compulsory proceedings instituted by the telegraph company. But this has no bearing on the act of 1866, nor does it make that act, as construed by us, a grant to railroads of greater power over commercial intercourse by telegraph than the states have. Indeed, we think, a comparison between the states and railroads in that regard is misleading, and overlooks the essential difference between restraints on the legislative power of the states and the rights of property.

On account of those restraints, it may be, and finding no impediment in the rights of property, interstate commerce by telegraph has marched to a splendid development, although in the acquisition of the means for its exercise it has relied on the consent of the owner of private property, or the power of eminent domain conferred by the states. We cannot but feel, therefore, that there is something inadequate in the argument which is based on the apprehension that the act of July 24, 1866, construed as we construe it gives a sinister power to railroad companies. It gives no power to those companies but that which appertains to the ownership of their property.

Decree affirmed.

In view of the importance of these cases I do not feel that any dissent from the opinion and judgment of the court should be expressed unless the grounds of such dissent be fully disclosed.

The controlling question before the court is whether the Western Union Telegraph Company is entitled, in virtue of any existing acts of Congress, to keep and maintain its telegraph lines upon the right of way of the Pennsylvania Railroad Company, assuming that the ordinary travel on that road will not be thereby interfered with.

Congress, having power to establish postoffices and post roads, has declared all railroads in operation within the limits of the United States to be post roads and post routes. 5 Stat. at L. 283, chap. 172; 10 Stat. at L. 255, chap. 146; Rev. Stat. § 3964, U.S.C.omp. Stat. 1901, p. 2707; 23 Stat. at L. 3, chap. 9, U.S.C.omp. Stat. 1901, p. 2708.

There was, for many years, as all know, and therefore as the court may judicially know, a widespread belief that the government and the people of the country were at great disavantage in matters of business and intercourse as involved in the use of the telegraph. The conviction was strong and universal that the control of the post roads of the country was being exerted by great railroad corporations in such way as to subserve private and corporate interests at the expense of the United States and without any regard for the convenience of the general public. As a remedy for those evils Congress passed the act of July 24th, 1866, entitled 'An Act to Aid in the Construction of Telegraph Lines, and to Secure to the Government the Use of the Same for Postal, Military, and Other Purposes.' 14 Stat. at L. 221, chap. 230, U.S.C.omp. Stat. 1901, p. 3579. By that act Congress conferred upon any telegraph company organized under the laws of any state 'the right to construct, maintain, and operate lines of telegraph,' not only through and over the public domain, and over, under, or across the navigable streams or waters of the United States, but 'over and along any of the military or post roads of the United States.' By the same act it is declared that on the lines of such companies telegraphic communication between the several departments of the government should be at rates to be annually fixed by the Postmaster General, and have priority over all other business. § 2. To the exercise of the right thus given, Congress annexed several conditions, but the only one pertinent to the present discussion is the condition that the telegraph lines erected by any company accepting the provisions of the act should be so constructed and maintained as not to obstruct the navigation of the navigable streams and waters of the United States, or 'interfere with the ordinary travel on such military or post roads.'

The object of the act, this court has said, all its members concurring, 'was not only to promote and secure the interests of the government, but to obtain for the benefit of the people of the entire country every advantage in the matter of communication by telegraph which might come from competition between corporations of different states;' that 'it was very far from the intention of Congress, by any legislation, to so exert its power as to enable one telegraph corporation, Federal or state, to acquire exclusive rights over any post road;' and that 'no railroad company operating a post road of the United States over which interstate commerce is carried on can consistently with the act of July 24th, 1866, bind itself by agreement to exclude from its roadway any telegraph company incorporated under the laws of a state, which accepts the provisions of that act, and desires to use such roadway for its line in such manner as will not interfere with the ordinary travel thereon.' United States v. Union P. R. Co. 160 U.S. 1, 44, 49, 40 L. ed. 319, 334, 336, 16 Sup. Ct. Rep. 190, 206, 208. Yet, by its present construction of the act of 1866 the court-if we do not misapprehend its opinion-holds that the right which that act gives to construct, maintain, and operate a telegraph line upon a post road cannot, in virtue of that act, or under any existing legislation, be exercised by the Western Union Telegraph Company, against the will of the railroad company operating such road; and this, notwithstanding it be absolutely clear that the occupancy of the post road by the telegraph lines of the particular company proposing or desiring to erect them would not, in the slightest degree, interfere with the ordinary travel on such road. It is now held, in effect, that, so far as that act is concerned, and despite its explicit provisions, even the government cannot, except with the assent of the railroad company, enjoy the advantages sought to be secured by its passage. I think it was intended by the act of 1866, in the interest of the postal service and of interstate trade and intercourse, to throw open all the post roads of the country to the use of telegraph companies accepting its provisions, subject to the condition that such use should not interfere with ordinary travel on the post roads so occupied. And that intention is in harmony with the doctrine often announced by this court, that 'a railroad is a public highway, established primarily for the convenience of the people and to subserve public ends, and therefore subject to governmental control.' Cherokee Nation v. Southern Kansas R. Co. 135 U.S. 641, 657, 34 L. ed. 295, 302, 10 Sup. Ct. Rep. 965; Olcott v. Fon du Lac County, 16 Wall. 678, 694, 21 L. ed. 382, 388; United States v. Joint Traffic Asso. 171 U.S. 505, 43 L. ed. 259, 19 Sup. Ct. Rep. 25; Wisconsin, M. & P. R. Co. v. Jacobson, 179 U.S. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115.

But it is suggested that the telegraph company has not been expressly invested with the power of eminent domain. Nevertheless, it has been given, by express words, the right to construct, maintain, and operate its lines on any post road of the United States; and, as it is not contended that Congress has exceeded its power in granting that right, the question is whether the right so given can be made effective by any mode of procedure known to our jurisprudence. I have always supposed it to be competent for a court of the United States having general jurisdiction of suits at law and in equity, in some efficient mode, by some process or form of procedure, to enforce and protect any right constitutionally conferred by the legislative department. The principle is illustrated in D. M. Osborne & Co. v. Missouri P. R. Co. 147 U.S. 248, 259, 37 L. ed. 155, 161, 13 Sup. Ct. Rep. 299, 303, which was an action to enjoin the construction of a track along a public street, because of irreparable damage to be thereby inflicted on the plaintiff. This court, following the decision of Judge Brewer, now of this court, in McElroy v. Kansas City, 21 Fed. 257, said: 'If the defendant had an ultimate right to do the act sought to be restrained, but only upon some condition precedent, and compliance with the condition was within the power of the defendant, the injunction would almost universally be granted until the condition was complied with; but, if the means of complying with the condition were not at defendant's command, then the court would adjust its order so as to give complainant the substantial benefit of the condition while not restraining defendant from the exercise of its ultimate rights. Inasmuch as, while the statutes of Missouri provided for the assessment of damages resulting from the taking of property for public use, there existed no provision to attain that result where the property was merely damaged, an injunction was granted, with leave to the defendant to apply for the appointment of a board of commissioners to ascertain and report the damages which complainant would sustain, upon payment of which the injunction would be vacated.' This principle was recognized in the recent case of New York v. Pine, 185 U.S. 93, 46 L. ed. 820, 22 Sup. Ct. Rep. 592.

It is said by counsel that the right given by the act of 1866 is necessarily subject to the condition prescribed by the constitutional provision that private property shall not be taken for public use without just compensation, and that the property interest of the railroad company in its right of way cannot be permanently taken from it for public purposes, against its will, without making such compensation.

Upon the subject of compensation the court reproduces from the opinion in Sweet v. Rechel, 159 U.S. 380, 399, 40 L. ed. 188, 196, 16 Sup. Ct. Rep. 43, 48, this detached sentence: 'It is a condition precedent to the exercise of such power [eminent domain] that the statute make provision for reasonable compensation to the owner.' But the court does not apply any such rule to the present case, and holds that the act of 1866 is invalid as not making provision for compensation. Besides, the above sentence, taken in connection with the one immediately preceding it, shows clearly that what was said had reference to the taking of private property for public use without provision being made in the statute for compensation. The entire paragraph from which the above sentence was taken reads: 'When, however, the legislature provides for the actual taking and appropriation of private property for public uses, its authority to enact such a regulation rests upon its right of eminent domain,-a right vital to the existence and safety of government. But it is a condition precedent to the exercise of such power that the statute make provision for reasonable compensation to the owner.' What was said in Sweet v. Rechel plainly had no reference to property of a public or quasi public nature. The same observations may be made in reference to the quotation made from Cherokee Nation v. Southern Kansas R. Co. 135 U.S. 641, 34 L. ed. 295, 10 Sup. Ct. Rep. 965. What was said in that case had also reference to the taking of private property. If the court were now of opinion that the act of 1866 was invalid as not making provision for compensation, then the object of citing Sweet v. Rechel and Cherokee Nation v. Southern Kansas R. Co. would be both manifest and appropriate. But the court does not hold that the act of 1866 is objectionable on any such ground. On the contrary, it holds a railroad right of way to be private property, and yet, despite its citation of the above cases, recognizes the validity of the act, although it makes no provision for compensation to the owner. It may not be appropriate for me to say that I adhere to what was said in Sweet v. Sechel and Cherokee Nation v. Southern Kansas R. Co., the opinions in both of which cases were written by myself, speaking for the court. Whether a railroad right of way over a post road of the United States-such road being a public highway established primarily for the public convenience and subject to governmental control-is private property within the rule that a statute authorizing private property to be taken for public use must make provision for compensation, is a question not wholly free from doubt, and it need not be here discussed; for the court does not hold that the act of 1866 is subject to that objection.

But let it be granted, for the purposes of this case, that a railroad company has such a property interest in its right of way that it is entitled to compensation if such right of way be appropriated to the use of a telegraph company accepting the act of 1866; still, the question remains, In what way or by what mode may such compensation be legally ascertained? May it not be ascertained by a court of general jurisdiction, when all parties in interest are regularly being brought in? Here the telegraph company comes into the circuit court of the United States, and seeks, in virtue of the act of Congress, to enforce the right expressly granted to it, of occupying the post road in question with its lines. It expresses its readiness to make such compensation to the railroad company as the law requires, and informs the court that it has instituted an action at law to ascertain the amount of such compensation. The bill alleges: 'Your orator says further that it is diligently prosecuting said action on the law side of this court for the ascertainment of the amount of compensation to the said railway companies defendant herein, for the right to the use of said railroads to maintain and operate its telegraph line along and over the lines of said railways as prescribed in said act of Congress of July 24th, 1866; and that it will continue to prosecute the same to a final determination as rapidly as the business in said court will permit the said cause to be heard and determined, and without any unnecessary delay.'

'Your orator prays that this court ascertain, order, adjudge, and decree the amount of compensation to be paid by your orator to the defendants, as their rights may severally appear, for the construction, maintenance, and operation of your orator's telegraph lines over and along the right of way of the defendants' said railroads, under the terms, provisions, and restrictions of said acts of Congress hereinbefore mentioned, or, if this court shall order and determine that the amount of such compensation to the defendants shall be such amount as shall be determined or adjudged in the said action at law, that upon due payment of such compensation by your orator to the defendants this court will order, adjudge, and decree that your orator is entitled to a perpetual injunction against the defendants herein and each of them, restraining them and each of them from in any manner interfering with the location, construction, maintenance, and operation of your orator's said lines of telegraph upon the roadway or right of way of the said defendants, under and subject to the provisions and restrictions of the said act of Congress of July 24th, 1866, and meanwhile and until the final decree of this court that a temporary injunction be issued against the defendants, prohibiting and restraining them and each of them from in any manner interfering with the use and operation of the telegraph lines of your orator upon the said roadway and right of way of the defendants pending the determination of the said action at law, or until the further order of this court in the premises. And for such other and further relief as the case may require and to your honors may seem just.'

Kohl v. United States, 91 U.S. 367, 375, 376, 23 L. ed. 449, 452, 453, was an application filed in pursuance of acts of Congress authorizing and directing the Secretary of the Treasury to purchase a site for a public building. A site was selected, but the Secretary and private owners could not agree as to price, and the acts of Congress did not direct the particular mode by which the land should be condemned and the compensation to be made by the government ascertained. The Secretary of the Treasury, in order to carry out the will of Congress, did not institute formal proceedings of condemnation, as one of the acts, under which he proceeded, authorized him to do. But he instituted a suit in a circuit court of the United States to appropriate a certain parcel of land for the proposed building. It was objected that the circuit court was without jurisdiction, but that objection was overruled. It was contended in argument that, while the United States had the right of eminent domain, Congress had not given to the circuit court jurisdiction of a proceeding for the condemnation of property brought by the United States in the assertion or enforcement of that right; and that the act of Congress meant that the land for the proposed public building was to be obtained under the authority of the state government, in the exercise of its right of eminent domain. It was further contended that if the proceeding was properly instituted in the circuit court, then the act of Congress required that it should conform to the provisions of the state law in a like proceeding in the state court. This court said: 'Doubtless Congress might have provided a mode of taking the land and determining the compensation to be made, which would have been exclusive of all other modes. They might have prescribed in what tribunal or by what agents the taking and the ascertainment of the just compensation should be accomplished. The mode might have been by a commission, or it might have been referred expressly to the circuit court; but this, we think, was not necessary. The investment of the Secretary of the Treasury with power to obtain the land by condemnation, without prescribing the mode of exercising the power, gave him also the power to obtain it by any means that were competent to adjudge a condemnation. . . It is quite immaterial that Congress has not enacted that the compensation shall be ascertained in a judicial proceeding. That ascertainment is in its nature at least quasi judicial. Certainly no other mode than a judicial trial has been provided. . . . ''But there is no special provision for ascertaining the just compensation to be made for land taken. That is left to the ordinary processes of the law; and hence, as the government is a suitor for the property under a claim of legal right to take it, there appears to be no reason for holding that the proper circuit court has not jurisdiction of the suit under the general grant of jurisdiction made by the act of'' 1789.'

In United States v. Jones, 109 U.S. 513, 518, 519, 27 L. ed. 1015, 1017, 3 Sup. Ct. Rep. 346, which was a proceeding to condemn property for the use of the United States, this court, referring to a certain proposition advanced by counsel, said: 'There is in this position an assumption that the ascertainment of the amount of compensation to be made is an essential element of the power of appropriation; but such is not the case. The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Mississippi & R. River Boom Co. v. Patterson, 98 U.S. 403, 25 L. ed. 206, requires no constitutional recognition. The provision found in the 5th Amendment to the Federal Constitution and in the Constitutions of the several states, for just compensation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. . . . But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property. There is nothing in the nature of the matter to be determined which calls for the establishment of any special tribunal by the appropriating power. The proceeding for theascertainment of the value of the property and consequent compensation to be made is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before the commissioners, or special boards, or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon.'

The vital object of the present suit was to secure the recognition and enforcement of the right of the telegraph company, under the act of 1866, to keep and maintain its lines upon the railroad's right of way. If it had such a right,-the authority to confer the right is, we repeat, not disputed,-then this suit in equity was an appropriate mode by which the right could be adequately protected and compensation secured to the railroad company. To assert the right and to ask that the amount of compensation shall be ascertained made the proceeding a suit or controversy within the meaning of the judiciary acts, and made the case one-in legal effect-for condemnation. I perceive no reason why the court, in advance of a final decree recognizing and enforcing that right, could not have instituted, as it was asked to do, an inquiry in respect of the compensation which the railroad company was entitled to receive for the proposed use of its right of way, and have made the payment of such compensation a condition precedent to the exercise by the telegraph company of the right given by the act of 1866. Having all the parties interested before it, could not the court have directed a jury to be impaneled to inquire, under the direction of the court, as to the amount of compensation to be paid to the railroad company? Could it have done any more under regular proceedings of condemnation? Instead of adopting that course, the circuit court proceeded upon the ground that even if the use of the defendant's road by the telegraph company would not interfere with ordinary travel on and over it, it was compelled by the former decisions of this court to hold that neither in virtue of the act of 1866, nor of any other existing Federal statute, could the telegraph company occupy the railroad's right of way without the consent of the railroad company.

The cases in this court which, it is supposed, adopted this view of the act of 1866, are ''Pensacola Teleg. Co. v. Western U. Teleg. Co.'' 96 U.S. 1, 24 L. ed. 708, and ''Western U. Teleg. Co. v. Ann Arbor R. Co.'' 178 U.S. 239, 243, 44 L. ed. 1052, 1054, 20 Sup. Ct. Rep. 867. But the utmost ingenuity is inadequate to show that the present question was involved in either of those cases, or that the decision in either case depended in the slightest degree on its solution.

It appears from the Pensacola Case that the Western Union Telegraph Company had the right to place and operate its lines upon the right of way of a certain railroad company between points in Alabama and points in Florida. There was no controversy in that case between the railroad company and the telegraph company as to the right of the latter to have its lines on the railroad right of way. The railroad company, as the report of the case shows, had consented to the occupancy of its right of way by the lines of the telegraph company, and that fact was not disputed. The railroad company was not even a party to the suit. It had no quarrel with the telegraph company. What need, then, had the court to consider the rights of the Western Union Telegraph Company, under the act of 1866, when it was conceded that that company had the consent of the railroad company to occupy its right of way? This view of the case was distinctly announced by this court when it said in the Pensacola Case that 'the present case is satisfied if we find that Congress has power, by appropriate legislation, to prevent the states from placing obstructions in the way of its [the telegraph's] usefulness.' The sole question in the case was as to the validity of a Florida statute, under which a Florida telegraph company was given exclusive telegraphic rights over the route to be occupied by the Western Union Telegraph Company with the consent of the railroad company; and the charter of the Florida company authorized it to locate and construct its lines within certain named counties of Florida, 'along and upon any public road or highway, or across any water, or upon any railroad or private property for which permission shall first have been obtained from the proprietors thereof.' This court held that the attempt of the state to exercise exclusive control over telegraphic communications between it and other states was in conflict with the commerce clause of the Constitution of the United States, and that the Florida statute was void so far as it assumed to grant exclusive privileges to a particular telegraph company.

Referring to the act of 1866 the court said: 'It substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the government of the United States and its citizens, that th erection of telegraph lines shall, so far as state interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one state for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the national government for this national privilege. To this extent, certainly, the statute is a legitimate regulation of commercial intercourse among the states, and is appropriate legislation to carry into execution the powers of Congress over the postal service. It gives no foreign corporations the right to enter upon private property without the consent of the owner, and erect the necessary structures for its business; but it does provide that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.' What was meant by the words, 'but it [the act] does provide that, whenever the consent of the owner is obtained,' I cannot understand. The act of 1866 does not contain any such provision, nor anything like it. Not a single word is to be found in it that refers to the consent of the owner of the property to be taken. The court proceeds: 'It is insisted, however, that the statute extends only to such military and post roads as are upon the public domain; but this, we think, is not so. The language is, 'through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States, which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States.' There is nothing to indicate an intention of limiting the effect of the words employed, and they are, therefore, to be given their natural and ordinary signification. Read in this way, the grant evidently extends to the public domain, the military and post roads, and the navigable waters of the United States. These are all within the dominion of the mational government to the extent of the national powers, and are, therefore, subject to legitimate congressional regulation. No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted.'

This language, it seems to me, has not been correctly interpreted. Undue stress has been laid upon the words 'private property without the consent of the owner,' and the words 'private property. . . obtained by private arrangement with its owner.' They have been so interpreted as to make the court decide a question not before it, not necessary to the decision, not involved in the issues made, and never suggested by counsel. The briefs of counsel in that case show that no such question was in their minds; for they as well as the court knew, from the record before them, and as we may know from an examination of that record, that the Western Union Company was entitled, so far as the consent of the railroad company was concerned, to maintain its lines on the railroad right of way. Upon the above-quoted words the contention is based that the court intended to decide that no railroad right of way could, in virtue of the act of 1866 be occupied by any telegraph company without the consent of the railroad company first obtained. I cannot believe that any such question was intended to be decised. As already shown, the court expressly said that the only question to be decided was whether Congress had power to prevent a state from obstructing interstate telegraphic communications, by granting exclusive privileges to a particular telegraph company of its own creation. It is a mistake to say that the court declared that the sole purpose of the act of 1866 was to prevent state monopolies, or that the act was merely an exercise of national power to forbid state interference with telegraphic communications. It did say that the case then before the court would be satisfied if the question as to state interference was decided, that is, that the case involved no other question. Besides, the whole context of the opinion in the Pensacola Case shows that the court did not include railroad property employed in commerce when it used the above-quoted words. It was argued in that case that the act of 1866 had reference only to the 'public domain,' that is, to the public lands owned by the United States. This view was distinctly rejected, and post roads were placed by the court, so far as the privileges granted by the act were concerned, on the same plane as the public domain, so that not even a state could interfere with the national privilege granted by Congress, if the telegraph company accepted the terms of the act. The court said that any telegraphic company accepting the provisions of the act could put its lines on any post road, if ordinary travel thereon was not interfered with, and that not even the state could stand in the way. It then added, as if out of abundant caution, and to show that Congress had no purpose to interfere with the rights of private owners, that no attempt was made by Congress to provide for the appropriation of private property, and that 'the use of public property alone is granted.' That meant that the act had not granted any right to telegraph companies to occupy private property with telegraph lines. Having said that the act granted the use of post roads for telegraphic purposes, that it embraced the use of such roads equally with the public domain, and that 'the use of public property alone is granted,' it is inconceivable that the court employed in the same connection the words 'private property' as embracing post roads, or the use of such roads. To relieve the minds of those who apprehended danger arising from the act of 1866 to state sovereignty and to rights that were strictly private, the court took care to say that neither state sovereignty nor private rights were interfered with; that only national privileges were granted; but that, in respect of the use of the public domain and military and post roads, Congress had power to pass the act of 1866, and in dealing with the use of post roads by telegraph companies it dealt with public property.

When the court held in the Pensacola Case that telegraphic communications between the states could be regulated by Congress under its power to regulate commerce, and that the statute of Florida which assumed to give to a Florida telegraph company an exclusive right in respect of telegraphic communications over certain territory in that state was inconsistent with the act of 1866, that was an end of that case, and nothing remained to be done except to dismiss the suit. The court itself so declared. Nothing more was in issue between the parties. The case involved, I confidently insist, no question as to the previous assent of the railroad company being a condition of the exercise by the Western Union Telegraph Company of the rights given by the act of 1866.

Nor is the case of ''Western Union Teleg. Co. v. Ann Arbor R. Co.'' 178 U.S. 239, 243, 244, 44 L. ed. 1052, 1054, 20 Sup. Ct. Rep. 867, 869, an authority for the action of the circuit court. That was a case in which the only relief sought was the specific performance of a contract under which a telegraph company claimed the right to remain in the occupancy of the right of way of a railroad company. The court pertinently observed in that case that it was not claimed that 'the telegraph company had any right under the statute, and independently of the contract, to maintain and operate this telegraph line over the railroad company's property.' It was, however, claimed that, as the telegraph company was in the discharge of public duties, the circuit court 'should have so framed its decree as to preserve the occupancy of the telegraph company, subject to making compensation to the railroad company, the value of the alleged easement to be ascertained by the court.' But that view was rejected because the bill 'was not framed in that aspect' and so as to protect the occupancy of the telegraph company subject to the condition of its making compensation; and the court also said that the relief asked could not be given under the prayer for general relief, because not 'agreeable to the case made by the bill.'

Now, the present bill has been framed so that the court can protect the right given to the telegraph company by the act of 1866 to have its wires and poles on the company's right of way, upon its being ascertained that such use will not interfere with the ordinary travel on the railroad, just compensation being made for that use, and the amount of compensation to be ascertained by the court in some appropriate way.

In my judgment, nothing involved or in judgment in the Pensacola and Ann Arbor Cases requires the affirmance of the decree of the circuit court.

The affirmance of that decree of the circuit court will mean that the efforts of Congress, by the act of 1866, to obtain for the people of the country the advantages accruing from competition between corporations of the different states in the matter of telegraphic communications, and also to promote and secure the interests of the government as involved in the conduct of its postal and military business, will prove of but little value. Indeed, as construed, it might have been better for the country if the act of 1866 had not been passed, and the states left free to establish such regulations in reference to telegraphic communications, within in and over its territory, as would be appropriate and valid in the absence of congressional legislation on the subject. As the matter now stands, the whole subject is practically committed to the railroad companies. The court says that the act of 1866 is an efficient enactment for the purpose of preventing state interference with interstate telegraphic communications. As now construed, it would seem to be most efficient in tying the hands of the state, and leaving railroad companies operating post roads, so far as existing legislation is concerned, absolute masters of interstate communication by telegraph.

In the Pensacola Case it was decided, and I think rightly, that in respect at least of interstate telegraphic communications, a state could not give exclusive privileges to a particular telegraph company. But, as just stated, by the necessary operation of the judgment now rendered a railroad company operating a post road can, in effect or practically, confer exclusive privileges upon a particular telegraph company, in respect of its right of way, by simply withholding its consent for a second telegraph company to occupy any part of such right of way with its wires and poles. If the government should be of opinion that the public business imperatively required another telegraph line upon the post road now occupied by the Pennsylvania Railroad, that company need only object to other telegraph lines being placed upon its right of way, and that will be the end of the matter, so far as the act of 1866, as now construed, is concerned. If the government and a telegraph company fully equipped should jointly represent to the railroad company that an additional company can be admitted to its right of way without obstructing the ordinary travel on that road, the company need only reply that no other telegraph company than the one now there can occupy its right of way, and that will be the end of the matter, so far as the act of 1866, as now construed, is concerned. And all this is now made possible, notwithstanding the decision of this court in United States v. Union P. R. Co. above cited. In that case we propounded this question: 'Can it be said that after the passage of the act of 1866, and while it was in force, a railway company operating a post road of the United States could, by any form of agreement, exclude from its roadway a telegraph company which had accepted the provisions of that act?' We said that this question could be answered only in one way, 'namely, that every railroad company operating a post road of the United States, over which commerce among the states is carried on, was inhibited, after the act of July 24th, 1866, took effect, from making any agreement inconsistent with its provisions or that tended to defeat its operation.' The court added that it was very far from the intention of Congress by any legislation to so exert its power as to enable one telegraph corporation, Federal or state, to acquire exclusive rights over any post road. But now a railroad corporation operating a post road, and wishing its right of way occupied only by a single company with which it may have a special business arrangement for its own purposes, need not make even a secret agreement granting exclusive privileges to that company. It need only keep silence and withhold its assent to the occupancy of its right of way by another company, and in that way give exclusive privileges to the company with which it has a special arrangement; it may be to one organized wholly in the interest of the railroad company. In the Pensacola Case it was said that one of the objects of the act of 1866 was to prevent state monopolies in telegraphic communication, and that the privilege granted by that act was a national privilege. Now, although state monopolies cannot exist, railroad monopolies in telegraphic communications may exist; and the national privilege granted by the act of 1866 is left at the mercy of railroad companies operating the post roads of the United States.

Practically, the railroad corporations operating post roads looking to their own interests and perhaps caring little for the general welfare-are recognized as now having more power than a state. I cannot assent to any interpretation of the act of 1866 from which such a result can follow. No such result is, in my opinion, consistent either with the words of the act or with the objects which Congress, as this court has said, intended to accomplish by its passage. The act, reasonably interpreted, was, I think, intended to give a telegraph company accepting its provisions the absolute right to put its wires and poles upon any post road,-a public highway established primarily for the public convenience,-if the ordinary travel on such road was not thereby interfered with.

For these reasons, I am constrained to dissent from the opinion and judgment of the court.

I concur in the judgments in these cases, but do so distinctly on the ground that the questions have been settled in prior cases. If the matter was res integra, the views expressed by Mr. Justice Harlan would be very persuasive. ''Pensacola Teleg. Co. v. Western U. Teleg. Co.'' 96 U.S. 1, 24 L. ed. 708, and ''Western U. Teleg. Co. v. Ann Arbor R. Co.'' 178 U.S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867, seem to me controlling. In the first of these cases the scope of the power and authority granted by the act of 1866 was distinctly presented. It was within the proper limits of inquiry, and the opinion of the court shows that it was fully considered. The declarations in that opinion are clear and precise, and cannot be considered in any just sense obiter dicta. The decision was announced in 1877, and was reaffirmed in 1890 in the Ann Arbor case. If the court erred in its construction of the act, Congress has had twenty-seven years in which to correct the mistake. Its omission to take any action must be considered as an acquiescence on its part in that construction. And I am of the opinion that when this court has construed a statute of Congress, and that construction has remained for more than a quarter of a century, neither ther changed by any judicial decisions nor set aside by any congressional legislation, it ought not to be disturbed except for the most cogent reasons.