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Waite, that the act of 1866 was an exercise | If private property is required, it must, so of the power of Congress over interstate far as the present legislation is concerned, commerce, and the power to establish post be obtained by private arrangement with its offices and post roads, and, like other powers owner. No compulsory proceedings are auof the national government, could be exer- thorized. State sovereignty under the Con. cised “upon every foot of territory under its stitution is not interfered with. Only najurisdiction.” It was held, therefore, that tional privileges are granted.” the act was not a grant of rights only in the This language and the distinctions impublic domain, and the character of the ported by it were approved in Western U. rights was made unmistakable. The stat- Teleg. Co. v. Ann Arbor R. Co. 178 U. S. ute, the court said, “in effect amounts to a 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867. prohibition of all state monopolies" in com- It was a bill in equity filed in the circuit mercial intercourse by telegraph. This is court of Benzie county, Michigan, by a tele. expressed more than once as the fundamen- graph company against a railway company tal idea and sole purpose of the statute. The to restrain the latter from interfering with court further said: “It [the statute] sub- the rights of the telegraph company in a stantially declares, in the interest of com- certain telegraph line along the right of way merce and the convenient transmission of in- of the railroad. It was removed to the cir. telligence from place to place by the govern- cuit court of the United States. The circuit ment of the United States and its citizens, court dismissed the bill, and its action was that the erection of telegraph lines shall, 80 affirmed by the circuit court of appeals. 33 far as state interference is concerned, be free C. C. A. 113, 61 U. S. App. 741, 90 Fed. to all who will submit to the conditions im- 379. The Western Union Telegraph Composed by Congress, and that corporations or- pany brought the case here. The decrees of ganized under the laws of one state for con- both courts were reversed, and the case restructing and operating telegraph lines shall manded to the circuit court, with directions not be excluded by another from prosecut- to remand the case to the state court. This ing their business within its jurisdiction, if was decreed on the ground that, by the they accept the terms proposed by the na- statement of the complainant's (telegraph tional government for this national privi- company) own case, it was not brought lege. To this extent, certainly, the statute "within the category of cases arising under is a legitimate regulation of commercial in the laws or Constitution of the United tercourse among the states, and is appro- States." We said that the bill was in effect priate legislation to carry into execution for the specific performance of a contract. the powers of Congress over the postal serv- “It is not argued,” we said, by the Chief

Justice, “by counsel for the telegraph comAnd this construction, making the act of pany that the telegraph company had any 1866 merely an exercise of national power right under the statute, and independently to withdraw from state control or inter- of the contract, to maintain and operate this ference commercial intercourse by telegraph, telegraph line over the railroad company's is further emphasized in the opinion and the property; and it has been long settled that objections to it completely answered, which that statute did not confer on telegraph were based on the ownership of the post companies the right to enter on private roads by individuals or corporations, and property without the consent of the owner, the necessity of implying a grant of the and erect the necessary structures for their power of eminent domain to telegraph com- business; but it does provide that, whenpanies to appropriate them. The court ever the consent of the owner is obtained, said:

no state legislation shall prevent the occu“It [the act of 1866] gives no foreign pation of post roads for telegraph purposes corporation the right to enter upon private by such corporations as are willing to avail property without the consent of the owner, themselves of its privileges." and erect the necessary structures for its And further: “As we have said, it was business; but it does provide that, when not asserted in argument that the telegraph ever the consent of the owner is obtained, company had the right, independently of no state legislation shall prevent the occu- the contract, to maintain its line on the pation of post roads for telegraph purposes railroad company's property, and, in view by such corporations as are willing to avail of the settled construction of the statute, we themselves of its privileges.”

could not permit such a contention to be recAnd again:

ognized as the basis of jurisdiction.” In “No question arises as to the authority of other words, by the decision in the PensaCongress to provide for the appropriation cola Case no such Federal question remained of private property to the uses of the tele- to be based on the act of 1866. graph, for no such attempt has been made. Counsel, however, pronounce the extracts The use of public property alone is granted. 'quoted from the Pensacola Case and their


repetition in the Ann Arbor Case as dicto, under it the Western Union Telegraph Comand urge, besides, that the irresistible logic pany claimed the right to exclude all other of other cases overthrows the authority of telegraph companies from the roadway of both. Neither proposition is tenable. We the railway company, notwithstanding the have said enough to demonstrate that the act of 1866. Mr. Justice Harlan, speaking language we have quoted was the deliberate for the court, said that such an agreement resolution of the court, and we might con- "directly tended to make the act of July 24, tent ourselves by observing that, as the 1866, ineffectual, and was, therefore, hostile Ann Arbor Case is the last expression of to the object contemplated by Congress. this court interpreting the act of 1866, Pensacola Teleg. Co. v. Western U. Teleg. prior cases, if not reconcilable with its ex- Co. 96 U. S. 1, 11, 24 L. ed. 708, 711.” position of that act, are superseded. We We need not dissent from these views, or think they are so reconcilable.

qualify the general language by which they One of the cases which is relied on (West-were amplified and supported. Whatever ern U. Teleg. Co. v. Atty. Gen. 125 U. S. rights were granted by the act of 1866 were 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961, as- granted to all telegraph companies, and serted the very valuable right obtained by could not be defeated by a binding contract telegraph companies under the act of 1866, with some one company; nor could such an and vindicated it against a statute of Mas- agreement be used to evade or escape the sachusetts, which provided for an injunc- commands of the statute constituting the tion against the prosecution of business by Union Pacific Railway, passed in 1862 [12 the company as a means of enforcing the Stat. at L. 489, chap. 120), or the supplepayment of taxes. This is the very essence mentary act of 1888 [25 Stat. at L. 382, of the effect given to the act of 1866 by chap. 772, U. S. Comp. Stat. 1901, p. 3583], the Pensacola and Ann Arbor Cases. The which was passed by virtue of a power retelegraph company was in occupation of the served in the act of 1862. The suit was post roads of the state of Massachusetts, brought to enforce the duties and obligations whether railroads or the ordinary highways imposed by those statutes on the railway does not appear. Its right to be there was company. The statutes are quoted in the not controverted, and how it got there was opinion, and the act of 1866 is referred to of no consequence. Its right to do business only as reinforcing the provisions of the after and during such occupation was in- statute of 1862. It was only necessary, volved and was decided, and to this right therefore, to declare the policy of the act of the language of the court was addressed, 1866 as a grant of rights to all telegraph and receives limitation from it. The lan- companies.

The lan- companies. The consideration of the court guage of the court was substantially the was not directed to anything else. The exsame as that of the act of Congress. It tent of the rights granted as presented in enforced the right given by that act, and the case at bar could not have been in congave to the telegraph company the protec- templation. They were not in issue, and it tion of the national power and supremacy, could not have been intended to anticipate and differs only in the instance, not in the and decide the controversies which might principle, declared in the Pensacola Case. be based upon them. The telegraph company, indeed, sought for St. Louis v. Western U. Teleg. Co. 148 more than the mere exercise of a right. It U. S. 93, 37 L. ed. 381, 13 Sup. Ct. Rep. sought to turn the act of 1866 from a mere 485, is also urged by the telegraph company permission to exercise a right to the crea- as inconsistent with the Ann Arbor Case. tion of such an instrumentality of the na- It is clearly not so. The case involved the tional government as to be exempt from validity of a charge or rental made by the state taxation. The court rejected that city of St. Louis for the use of its streets view.

by the telegraph company. The charge was So also must be limited the language in imposed by the same ordinance that gave Western U. Teleg. Co. v. Texas, 105 U. S. permission to the telegraph company to oc460, 26 L. ed. 1067, and United States v. cupy the streets of the city. The telegraph Union P. R. Co. 160 U. S. 1, 40 L. ed. 319, company resisted the charge upon several 16 Sup. Ct. Rep. 190. In the first the dis- grounds, among which were the provisions tinction which was necessary to make was of the act of 1866, and its acceptance by between intra- and inter-state commerce, the company. The charge was held to be a and to determine what rights as to the lat- valid one, but on no ground which involved ter were conferred by the act of 1866. In the consideration of the right of the telethe second case the efficacy of the act to pre- graph company to occupy the streets. The vent binding contracts against its policy right was not disputed. The ordinance of was involved. The case called for that, but the city conferred it. The claim made unno more, as far as the act of 1866 was con- der the act of 1866 was that it exempted the cerned. Such an agreement was set up, and' telegraph company from a payment of any compensation. But compensation was de- sence of a provision for it has been regardcrced on the ground that the franchise or ed as important in determining the intenprivilege granted by the act of 1866 could tion of the legislature when a grant of such only be exercised in subordination to public power is claimed. 1 Lewis, Em. Dom. 8 as well as private rights, and, as entry up- 240, and cases cited. We said in Sweet v. on the latter could only be made upon the Rechel, 159 U. S. 399, 40 L. ed. 196, 16 payment of just compensation, entry upon Sup. Ct. Rep. 48, by Mr. Justice Harlan: the former was subject to the same payment. “It is a condition precedent to the exercise This was all that was necessary to decide of such power [eminent domain] that the to sustain the charge made by the city. In statute make provision for reasonable comother words, it was all that was necessary to pensation to the owner.” Many state cases decide to meet the extreme contention made were cited, and also Cherokee Nation v. by the telegraph company, that under the Southern Kansas R. Co. 135 U. S. 641, 34 act of 1866 it was entitled to occupy the L. ed. 295, 10 Sup. Ct. Rep. 965. The act streets without charge, notwithstanding its of Congress under review in the latter case, occupation was exclusive and permanent, as it was contended, did not provide for comthe court said it was. It is manifest, to pensation for the property taken. In reply, hold that there can be no entry upon prop- Mr. Justice Harlan, delivering the opinion erty without payment of compensation is of the court, said: “The objection to the not to decide that such entry can be made act cannot be sustained. The Constitution upon tender of compensation. Certainly, as declares that private property shall not be to private property or rights, the nonconsent taken ‘for public use without just comof the owner is a factor to be dealt with. pensation. It does not provide or require Nonconsent, if resolute, can only be over that compensation shall be actually paid come by power conferred by law; in other in advance of the occupancy of the land to words, by the exercise of eminent domain. I be taken. But the owner is entitled to The act of 1866 was not considered in that reasonable, certain, and adequate provision regard.

for obtaining compensation before his ocBy this review of the cases it is evident cupancy is disturbed. Whether a particular that there is no inconsistency between them provision be sufficient to secure the comand the Pensacola Case and the Ann Arbor pensation to which, under the Constitution, Case, and we are brought to the discussion he is entitled, is sometimes a question of of the general considerations urged against difficulty.” The requirements of the Conthe latter cases. Construed as they con- stitution were held to be fully met because strue the act of 1866, it becomes meaning the act which was under consideration proless, counsel say. If the act grants no vided that, before the railway which was rights, it is urged, except by permission of authorized should be constructed through the railroad companies, it confers no more any of the lands proposed to be taken, full than can be obtained from the railroad com- compensation should be made to the owner panies. The objection is best answered by for all property taken, or damage done by examples. The telegraph company had such reason of the construction of the road, and permission in the Pensacola Case. It need in the event of an appeal from the finding ed, however, the act of 1866 to make its of the referee the railway company should exercise effectual against the legislation of pay into court double the amount of the the state of Florida. In the Union Pacific award to abide the judgment. Case a claim of a monopoly by one telegraph In Kohl v. United States, 91 U. S. 367, company was answered by the act construed 23 L. ed. 449, acts of Congress were conas a grant of rights to all companies. These sidered, one providing for the acquisition of examples show important results achieved a site for a public building, the other an by the act, and the principles of the cases appropriation act. The appropriation made may come to be applied to prevent other by the latter was “for the purchase, at a hostile action of states or individuals. private sale or by condemnation, of ground

This court, when it came to consider the for a site” for the building. The real conact of 1866 in the Pensacola Case, was controversy in the case was whether the acts of fronted, as we are confronted now, with the Congress intended the site to be obtained serious nature of the right of eminent do- under the authority of the state governmain. It is indeed “inseparable from sov- ment in the exercise of its power of eminent ereignty,” but it is accompanied and re- domain, or by the United States government strained by inexorable limitations. The in its own right and by virtue of its own property taken must be for a public use, and eminent domain. The court held the latthere must be compensation made for it, ter, and, commenting on the sufficiency of and compensation, whether it be regarded the acts to give the right, said: “The auas part of the power or a limitation upon thority here given the first act] was to the power, is so far essential that the ab- 'purchase. If that were all, it might be

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doubted whether the right of eminent do- so much beneath as may be necessary for main was intended to be invoked.


But whatever it may be That Congress intended more than this is called, it is, in substance, an interest in evident, however, in view of the subsequent the land, special and exclusive in its naand amendatory act passed June 10, 1872 ture.” Pennsylvania 8. Valley R. Co. v. [17 Stat. at L. 352, chap. 415, U. S. Comp. Reading Paper Mills, 149 Pa. 18, 4 Atl. Stat. 1901, p. 2457], which made an ap- 205; Philadelphia v. Ward, 174 Pa. 45, 34 propriation 'for the purchase, at private Atl. 458; Pittsburgh, Ft. W. & C. 0. R. Co. sale or by condemnation, of the ground for v. Peet, 152 Pa. 488, 19 L. R. A. 467, 25 a site' for the building.”

Atl. 612. But in the act of July, 1866, there is not A railroad's right of way has, therefore, a word which provides for condemnation or the substantiality of the fee, and it is pri. compensation. The rule that when a right vate property, even to the public, in all is given all the means of exercising it are else but an interest and benefit in its uses. given does not, as we have seen, apply to It cannot be invaded without guilt of tresthe extent contended for by the telegraph pass. It cannot be appropriated in whole company. The exercise of the power of em- or part except upon

or part except upon the payment of compeninent domain is against common right. It sation. In other words, it is entitled to the subverts the usual attributes of the owner- protection of the Constitution, and in the ship of property. It must, therefore, be precise manner in which protection is given. given in express terms or by necessary im- It can only be taken by the exercise of the plication; and this was the reasoning in powers of eminent domain; and a condithe Pensacola Case, and applied directly to tion precedent to the exercise of such power the act of 1866. We may repeat the lan- is, we said in Sweet v. Rechel, that the guage of the court: “If private property is statute conferring it make provision for required it must, so far as the present legis reasonable compensation to the owner of the lation is concerned, be obtained by private property taken. This condition is expressed arrangement with its owner. No compul- with even more emphasis in Cherokee Nasory proceedings are authorized.”

tion v. Southern Kansas R. Co. In Sweet v. Rechel, Cherokee Nation v. A few words more may be necessary to Southern Kansas R. Co., and Kohl v. Unit- avoid all possible misunderstanding of the ed States, the property to which the consti-purpose for which we have cited those cases tutional protection was applied was prop- and Kohl v. United States. We have cited erty in private use. Their doctrine applies them, not as tests of the validity of the as well to private property devoted to a pub- act of 1866, but as tests of its meaning, suplic use. There is no difference whatever in porting the authority of the Pensacola Case principle arising from the difference in the and Ann Arbor Case. We have no occasion uses. A railroad right of way is a very sub- to consider the validity of the act of 1866 stantial thing. It is more than a mere right as an attempt to grant the power of emiof passage. It is more than an easement. nent domain. We decide the act to be an We discussed its character in New Mexico exercise by Congress of its power to with. v. United States Trust Co. 172 U. S. 171, draw from state interference interstate com43 L. ed. 407, 19 Sup. Ct. Rep. 128. We merce by telegraph. As such, of course, there said that if a railroad's right of way the act is an efficient and constitutional enwas an easement it was "one having the at- actment. tributes of the fee, perpetuity and exclusive Certain cases decided at circuit are cited use and possession; also the remedies of for our consideration, and we will close this the fee, and, like it, corporeal, not incorpo- branch of our discussion by a brief review real, property.” And we drew support for of them. this from a New Jersey case, in which state In Postal Teleg. Cable Co. v. Oregon Short the rights of way in the case at bar are sit-Line R. Co. 104 Fed. 623, and Postal Teleg. uated. We quoted New York, S. & W. R. Cable Co. v. Oregon Short Line R. Co. 114 Co. v. Trimmer, 53 N. J. L. 1, 3, 20 Atl. Fed. 787, there were views expressed favor761, as follows: “Unlike the use of a pri- able to the contentions made in the case at vate way,—that is, discontinuous,—the use bar by the telegraph company, but the judgof land condemned by a railroad company is ments in both cases were ultimately restperpetual and continuous.” And it is held ed upon the local statutes,-Idaho and Monin Pennsylvania "that a railway company is tana,—which granted the right of eminent a purchaser, in consideration of public ac- domain to telegraph companies. We may commodation and convenience, of the ex- also observe that the first case went to the clusive possession of the ground paid for circuit court of appeals of the ninth cirto the proprietors of it.” Philadelphia & cuit. That court sustained the judgment of R. R. Co: v. Hummell, 44 Pa. 375, 84 Am. the circuit court, upon the statute of Idaho Dec. 457. It is “a fee in the surface and ' and upon general legal principles. It did

not refer to the act of 1866. 49 C. C. A. / expressly created them “public highways," 663, 111 Fed. 843.

and that in the acquisition of land for their In Postal Teleg. Cable Co. v. Southern R. purposes they were public agents, "and the Co. 89 Fed. 190, and Postal Teleg. Cable land was taken by the government, and in Co. v. Cleveland, C. C. & St. L. R. Co. 94 the eye of the law as completely subject to Fed. 234, the act of 1866 was more directly public uses as though it had been taken by passed on. Both cases were proceedings in the state itself,”—that is to say, if we uneminent domain,-one brought in the courts derstand the argument, have become highof North Carolina and removed to the cir- ways in the full sense of that word. And cuit court of the United States; the other counsel further say the difference between brought in the circuit court of the United them and ordinary highways “is not a legal States for the northern district of Ohio. In difference, but is the difference of the kind passing on the susficiency of the petition in of use to which the highway is subject,-in the first case, Judge Simonton said that the the one case, wheel vehicles drawn by right of petitioner to construct its lines horses; in the other, to steam vehicles drawn along the right of way of post roads of the by locomotives along and upon iron rails.” United States was given under the act of They are subject, therefore, it is urged, as Congress of 1866; but, he observed, the ordinary highways and streets of a city are mode or method of exercising the right con- subject, to the control of Congress by virtue ferred was fixed by the laws of the several of its power over interstate commerce. states, and it was exclusive in its character Counsel in advancing the argument exhibin ascertaining the amount of compensation its a consciousness of taking an extreme poto be allowed. The right of the telegraph sition. It would seem,

It would seem, certainly if concompany was, therefore, considered and ad. sidered with other parts of their argument, judged under the North Carolina statutes. to make a railroad right of way public prop

In the second case a motion was made to erty. To that extreme we cannot go, for dismiss on the ground that the power of emi- the reasons which we have already indicated. nent domain was not conferred by any law The right of way of a railroad is property of the United States or the state of Ohio. devoted to a public use, and has often been The motion was sustained. District Judge called a highway, and as such is subject, to Ricks said: “The act of July 24, 1866, made a certain extent, to state and Federal conno provision for compensation or payment trol; and for this many cases may be cited. for property to be taken; hence the proce. But it has always been recognized, as we dure cannot be sustained by virtue of that have pointed out, that a railroad right of act.” He cited the Pensacola Case, 96 U. S. way is so far private property as to be en1, 11, 24 L. ed. 708, 711.

titled to that provision of the Constitution Western U. Teleg. Co. v. Ann Arbor R. Co. which forbids its taking, except under the 33 C. C. A. 113, 61 U. S. App. 741, 90 Fed. power of eminent domain and upon payment 379, and St. Paul, M. & M. R. Co. v. West- of compensation. The right of way of a ern U. Teleg. Co. 55 C. C. A. 263, 118 Fed. railroad was recognized as private property 497, were respectively decided by the circuit in the Pensacola Case, and we are brought court of appeals of the sixth circuit and the back to the main question,—the interpretacircuit court of appeals of the eighth cir- tion of the act of July, 1866, and upon that cuit. It is difficult to reconcile them. In we have sufficiently dilated. one it was decided, following the authority It follows from these views that the act of the Pensacola Case, that the telegraph of 1866 does not grant the right to telegraph company could not occupy the line of the de- companies to enter upon and occupy the fendant's railroad without its consent or rights of way of railroad companies, except that of some predecessor in title. This was with the consent of the latter, or grant the wanting. In the other it was conceded that power of eminent domain. Nor does the the right of entry upon private property was statute of New Jersey make those rights of not conferred by the act of 1866, without way public property so as to subject them the owner's consent, yet held that, as con- to such occupation under the provisions of sent had been given, no reason could be per- the act of 1866. ceived why a court of equity should compel It is admitted that the statutes of New a removal of the telegraph company's lines Jersey do not confer the right of eminent from the railway's right of way,—"especial- domain upon the telegraph company. ly where it appears that no express agree- 3. In view of our conclusion, it is not necment was made that they should be removed essary to consider the question whether, if when its lines were erected."

the power of eminent domain were granted 2. It is contended by the telegraph com- by the act of 1866, it would be within the pany that the charters under which the sev- competency of a court of equity to ascertain eral railway companies constituting the sys- compensation, or that compensation might tem of the railroad company were organized 'be determined at law. That question was

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