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pertinent in Kohl v. United States. It is roads in operation within the limits of the

, not pertinent in this case. The acts of United States to be post roads and post Congress passed on in Kohl v. United States, routes. 5 Stat. at L. 283, chap. 172; 10 as we have seen, provided for the appropria- Stat. at L. 255, chap. 146;. Rev. Stat. § tion of a site for a public building by pur- 3964, U. S. Comp. Stat. 1901, p. 2707; 23 chase or by condemnation. By the act of Stat. at L. 3, chap. 9, U. S. Comp. Stat. 1866 power of condemnation is not given, 1901, p. 2708. and, of course, methods of procedure are There was, for many years, as all know, not involved in its construction.

and therefore as the court may judicially It is equally unnecessary to consider the know, a widespread belief that the governquestions which might arise if the state of ment and the people of the country were at New Jersey gave the right of eminent do- great disadvantage in matters of business main to the telegraph company. It is con- and intercourse as involved in the use of ceded by counsel that such right does not the telegraph. The conviction was strong exist, and it happens that under the policy and universal that the control of the post of New Jersey the right of way of the rail- roads of the country was being exerted by road company enjoys in that state immu- great railroad corporations in such way as nity from compulsory proceedings instituted to subserve private and corporate interests by the telegraph company. But this has no at the expense of the United States and bearing on the act of 1866, nor does it make without any regard for the convenience of that act, as construed by us, a grant to rail the general public. As a remedy for those roads of greater power over commercial in- evils Congress passed the act of July 24th, tercourse by telegraph than the states have. 1866, entitled "An Act to Aid in the ConIndeed, we think, a comparison between the struction of Telegraph Lines, and to Secure states and railroads in that regard is mis- to the Government the Use of the Same for leading, and overlooks the essential differ- Postal, Military, and Other Purposes.” 14 ence between restraints on the legislative Stat. at L. 221, chap. 230, U. S. Comp. Stat. power of the states and the rights of prop- 1901, p. 3579. By that act Congress conerty.

ferred upon any telegraph company organOn account of those restraints, it may be, ized under the laws of any state “the right and finding no impediment in the rights of to construct, maintain, and operate lines of property, interstate commerce by telegraph telegraph,” not only through and over the has marched to a splendid development, al- public domain; and over, under, or across though in the acquisition of the means for the navigable streams or waters of the Unitits exercise it has relied on the consent of ed States, but "over and along any of the the owner of private property, or the power military or post roads of the United States." of eminent domain conferred by the states. By the same act it is declared that on the We cannot but feel, therefore, that there is lines of such companies telegraphic commusoinething inadequate in the argument which nications between the several departments is based on the apprehension that the act of of the government should be at rates to be July 24, 1866, construed as we construe it annually fixed by the Postmaster General, gives a sinister power to railroad compa- and have priority over all other business. 3 nies. It gives no power to those companies 2. To the exercise of the right thus given, but that which appertains to the ownership Congress annexed several conditions, but the of their property.

only one pertinent to the present discusDecree affirmed.

sion is the condition that the telegraph lines

erected by any company accepting the proMr. Justice Harlan, dissenting:

visions of the act should be so constructed In view of the importance of these cases and maintained as not to obstruct the navi. I do not feel that any dissent from the gation of the navigable streams and waters opinion and judgment of the court should of the United States, or "interfere with be expressed unless the grounds of such the ordinary travel on such military or post dissent be fully disclosed.

roads." The controlling question before the court The object of the act, this court has said, is whether the Western Union Telegraph all its members concurring, "was not only Company is entitled, in virtue of any ex- to promote and secure the interests of the isting acts of Congress, to keep and main-government, but to obtain for the benefit tain its telegraph lines upon the right of of the people of the entire country every adway of the Pennsylvania Railroad Com- vantage in the matter of communication by pany, assuming that the ordinary travel on telegraph which might come from competithat road will not be thereby interfered tion between

corporations

of different with.

states;” that "it was very far from the Congress, having power to establish post- intention of Congress, by any legislation, to offices and post roads, has declared all rail.' so exert its power as to enable one telegraph corporation, Federal or state, to acquire ex- | States; and, as it is not contended that Conclusive rights over any post road;" and that gress has exceeded its power in granting “no railroad company operating a post road that right, the question is whether the right of the United States over which interstate so given can be made effective by any mode commerce is carried on can consistently with of procedure known to our jurisprudence. I the act of July 24th, 1866, bind itself by have always supposed it to be competent for agreement to exclude from its roadway any a court of the United States having general telegraph company incorporated under the jurisdiction of suits at law and in equity, in laws of a state, which accepts the provisions some efficient mode, by some process or form of that act, and desires to use such road- of procedure, to enforce and protect any way for its line in such manner as will not right constitutionally conferred by the legisinterfere with the ordinary travel thereon." lative department. The principle is illusUnited States v. Union P. R. Co. 160 U. S. trated in D. M. Osborne & Co. v. Missouri P. 1, 44, 49, 40 L. ed. 319, 334, 336, 16 Sup. R. Co. 147 U. S. 248, 259, 37 L. ed. 155, 161, Ct. Rep. 190, 206, 208. Yet, by its present 13 Sup. Ct. Rep. 299, 303, which was an construction of the act of 1866 the court action to enjoin the construction of a track if we do not misapprehend its opinion, along a public street, because of irreparable holds that the right which that act gives to damage to be thereby inflicted on the plainconstruct, maintain, and operate a telegraph tiff. This court, following the decision of line upon a post road cannot, in virtue of Judge Brewer, now of this court, in MCthat act, or under any existing legislation, Elroy v. Kansas City, 21 Fed. 257, said: be exercised by the Western Union Telegraph "If the defendant had an ultimate right to Company, against the will of the railroad do the act sought to be restrained, but only company operating such road; and this, not- upon some condition precedent, and compliwithstanding it be absolutely clear that the ance with the condition was within the powoccupancy of the post road by the telegraph er of the defendant, the injunction would lines of the particular company proposing almost universally be granted until the conor desiring to erect them would not, in the dition was complied with; but, if the means slightest degree, interfere with the ordi- of complying with the condition were not at nary travel on such road. It is now held, defendant's command, then the court would in effect, that, so far as that act is con- adjust its order so as to give complainant cerned, and despite its explicit provisions, the substantial benefit of the condition while even the government cannot, except with not restraining defendant from the exercise the assent of the railroad company, enjoy of its ultimate rights. Inasmuch as, while the advantages sought to be secured by its the statutes of Missouri provided for the passage. I think it was intended by the assessment of damages resulting from the act of 1866, in the interest of the postal taking of property for public use, there exservice and of interstate trade and inter- isted no provision to attain that result course, to throw open all the post roads of where the property was merely damaged, an the country to the use of telegraph compa- injunction was granted, with leave to the nies accepting its provisions, subject to the defendant to apply for the appointment of a condition that such use should not inter- board of commissioners to ascertain and refere with ordinary travel on the post roads port the damages which complainant would so occupied. And that intention is in har- sustain, upon payment of which the injuncmony with the doctrine often announced by tion would be vacated.” This principle was this court, that "a railroad is a public high- recognized in the recent case of New York way, established primarily for the conven- v. Pine, 185 U. S. 93, 46 L. ed. 820, 22 Sup. ience of the people and to subserve public Ct. Rep. 592. ends, and therefore subject to governmental It is said by counsel that the right given control.” Cherokee Nation v. Southern Kan- by the act of 1866 is necessarily subject to sas R. Co. 135 U. S. 641, 657, 34 L. ed. 295, the condition prescribed by the constitution302, 10 Sup. Ct. Rep. 965; Olcott v. Fon al provision that private property shall not du Lac County, 16 Wall. 678, 694, 21 L. ed. be taken for public use without just compen382, 388; United States v. Joint Traffic sation, and that the property interest of the Asso. 171 U. S. 505, 43 L. ed. 259, 19 Sup. railroad company in its right of way canCt. Rep. 25; Wisconsin, M. & P. R. Co. v. not be permanently taken from it for pubJacobson, 179 U. S. 287, 45 L. ed. 194, 21 lic purposes, against its will, without mak. Sup. Ct. Rep. 115.

ing such compensation. But it is suggested that the telegraph Upon the subject of compensation the company has not been expressly invested with court reproduces from the opinion in Sweet the power of eminent domain. Nevertheless, v. Rechel, 159 U. S. 380, 399, 40 L. ed. 188, it has been given, by express words, the 196, 16 Sup. Ct. Rep. 43, 48, this detached right to construct, maintain, and operate sentence: "It is a condition precedent to its lines on any post road of the United 'the exercise of such power [eminent domain] that the statute make provision for it is entitled to compensation if such right reasonable compensation to the owner.” But of way be appropriated to the use of a telethe court does not apply any such rule to graph company accepting the act of 1866; the present case, and holds that the act of still, the question remains, In what way or 1866 is invalid as not making provision for by what mode may such compensation be compensation. Besides, the above sentence, legally ascertained ? May it not be ascer. taken in connection with the one immediate- tained by a court of general jurisdiction, ly preceding it, shows clearly that what was when all parties in interest are regularly said had reference to the taking of private being brought in? Here the telegraph comproperty for public use without provision pany comes into the circuit court of the being made in the statute for compensation. United States, and seeks, in virtue of the The entire paragraph from which the above act of Congress, to enforce the right expresssentence was taken reads: “When, however, ly granted to it, of occupying the post road the legislature provides for the actual tak- in question with its lines. It expresses its ing and appropriation of private property readiness to make such compensation to the for public uses, its authority to enact such a railroad company as the law requires, and regulation rests upon its right of eminent informs the court that it has instituted an domain,-a right vital to the existence and action at law to ascertain the amount of safety of government. But it is a condition such compensation. The bill alleges : precedent to the exercise of such power that “Your orator says further that it is dili. the statute make provision for reasonable gently prosecuting said action on the law compensation to the owner.” What was said side of this court for the ascertainment of in Sweet v. Rechel plainly had no reference the amount of compensation to the said railto property of a public or quasi public na- way companies defendant herein, for the ture. The same observations may be made right to the use of said railroads to mainin reference to the quotation made from tain and operate its telegraph line along and Cherokee Nation v. Southern Kansas R. Co. over the lines of said railways as prescribed 135 U. S. 641, 34 L. ed. 295, 10 Sup. Ct. in said act of Congress of July 24th, 1866; Rep. 965. What was said in that case had and that it will continue to prosecute the also reference to the taking of private prop- same to a final determination as rapidly as erty. If the court were now of opinion that the business in said court will permit the the act of 1866 was invalid as not making said cause to be heard and determined, and provision for compensation, then the object without any unnecessary delay.” of citing Sweet v. Rechel and Cherokee Na

“Your orator prays that this court ascertion v. Southern Kansas R. Co. would be tain, order, adjudge, and decree the amount both manifest and appropriate. But the of compensation to be paid by your orator court does not hold that the act of 1866 to the defendants, as their rights may sevis objectionable on any such ground. On erally appear, for the construction, maintethe contrary, it holds a railroad right of nance, and operation of your orator's teleway to be private property, and yet, de- graph lines over and along the right of way spite its citation of the above cases, rec- of the defendants' said railroads, under the ognizes the validity of the act, although it terms, provisions, and restrictions of said makes no provision for compensation to the acts of Congress hereinbefore mentioned, or, owner. It may not be appropriate for me if this court shall order and determine that to say that I adhere to what was said in the amount of such compensation to the deSweet v. Rechel and Cherokee Nation v. fendants shall be such amount as shall be Southern Kansas R. Co., the opinions in determined or adjudged in the said action at both of which cases were written by myself, law, that upon due payment of such compenspeaking for the court. Whether a railroad sation by your orator to the defendants this right of way over a post road of the United court will order, adjudge, and decree that States—such road being a public highway your orator is entitled to a perpetual inestablished primarily for the public conjunction against the defendants herein and venience and subject to governmental con- each of them, restraining them and each of trol--is private property within the rule them from in any manner interfering with that a statute authorizing private property the location, construction, maintenance, and to be taken for public use must make pro-operation of your orator's said lines of television for compensation, is a question not graph upon the roadway or right of way of wholly free from doubt, and it need not be the said defendants, under and subject to here discussed; for the court does not hold the provisions and restrictions of the said that the act of 1866 is subject to that ob- act of Congress of July 24th, 1866, and jection.

meanwhile and until the final decree of this But let it be granted, for the purposes of court that a temporary injunction be issued this case, that a railroad company has such against the defendants, prohibiting and rea property interest in its right of way that'straining them and each of them from in any manner interfering with the use and | It is quite immaterial that Congress bas operation of the telegraph lines of your not enacted that the compensation shall be orator upon the said roadway and right of ascertained in a judicial proceeding. That way of the defendants pending the deter- ascertainment is in its nature at least quasi mination of the said action at law, or un- judicial. Certainly no other mode than a til the further order of this court in the judicial trial has been provided. premises. And for such other and further But there is no special provision for ascerrelief as the case may require and to your taining the just compensation to be made honors may seem just.”

25 S. C.-10.

for land taken. That is left to the ordi Kohl v. United States, 91 U. S. 367, 375, nary processes of the law; and hence, as the 376, 23 L. ed. 449, 452, 453, was an applica- government is a suitor for the property untion filed in pursuance of acts of Congress der a claim of legal right to take it, there authorizing and directing the Secretary of appears to be no reason for holding that the Treasury to purchase a site for a pub- the proper circuit court has not jurisdiclic building. A site was selected, but the tion of the suit under the general grant of Secretary and private owners could not agree jurisdiction made by the act of 1789.” as to price, and the acts of Congress did not In United States v. Jones, 109 U. S. 513, direct the particular mode by which the 518, 519, 27 L. ed. 1015, 1017, 3 Sup. Ct. land should be condemned and the compensa- Rep. 346, which was a proceeding to contion to be made by the government ascer- demn property for the use of the United tained. The Secretary of the Treasury, in States, this court, referring to a certain order to carry out the will of Congress, did proposition advanced by counsel, said: not institute formal proceedings of con- “There is in this position an assumption demnation, as one of the acts, under which that the ascertainment of the amount of he proceeded, authorized him to do. But compensation to be made is an essential elehe instituted a suit in a circuit court of the ment of the power of appropriation; but United States to appropriate a certain par- such is not the case. The power to take pricel of land for the proposed building. It vate property for

It vate property for public uses, generally was objected that the circuit court was with termed the right of eminent domain, belongs out jurisdiction, but that objection was over to every independent government. It is an ruled. It was contended in argument that, incident of sovereignty, and, as said in while the United States had the right of Mississippi & R. River Boom Co. v. Pattereminent domain, Congress had not given to son, 98 U. S. 403, 25 L. ed. 206, requires no the circuit court jurisdiction of a proceed constitutional recognition. The provision ing for the condemnation of property found in the 5th Amendment to the Federal brought by the United States in the asser- Constitution and in the Constitutions of the tion or enforcement of that right; and that several states, for just compensation for the the act of Congress meant that the land for property taken, is merely a limitation upon the proposed public building was to be ob- the use of the power. It is no part of the tained under the authority of the state gov- power itself, but a condition upon which ernment, in the exercise of its right of emi. the power may be exercised.

But nent domain. It was further contended that there is no reason why the compensation to if the proceeding was properly instituted in be made may not be ascertained by any apthe circuit court, then the act of Congress propriate tribunal capable of estimating the required that it should conform to the pro- value of the property. There is nothing in visions of the state law in a like proceed the nature of the matter to be determined ing in the state court. This court said: | which calls for the establishment of any spe"Doubtless Congress might have provided a cial tribunal by the appropriating power. mode of taking the land and determining The proceeding for the ascertainment of the the compensation to be made, which would value of the property and consequent comhave been exclusive of all other modes. They pensation to be made is merely an inquisimight have prescribed in what tribunal or tion to establish a particular fact as a preby what agents the taking and the ascer-liminary to the actual taking; and it may tainment of the just compensation should be prosecuted before the commissioners, or be accomplished. The mode might have been special boards, or the courts, with or withby a commission, or it might have been re- out the intervention of a jury, as the legislaferred expressly to the circuit court; but tive power may designate. All that is rethis, we think, was not necessary. The in- quired is that it shall be conducted in some vestment of the Secretary of the Treasury fair and just manner, with opportunity to with power to obtain the land by condemna- the owners of the property to present evi. tion, without prescribing the mode of ex. dence as to its value, and to be heard there. ercising the power, gave him also the power on.” to obtain it by any means that were com- The vital object of the present suit was to petent to ad judge a condemnation

secure the recognition and enforcement of the right of the telegraph company, under pany, as the report of the case shows, had the act of 1866, to keep and maintain its consented to the occupancy of its right of lines upon the railroad's right of way. If way by the lines of the telegraph company, it had such a right,—the authority to confer and that fact was not disputed. The railthe right is, we repeat, not disputed,—then road company was not even a party to the this suit in equity was an appropriate mode suit. It had no quarrel with the telegraph by which the right could be adequately pro- company. What need, then, had the court tected and compensation secured to the rail- to consider the rights of the Western Union road company.

To assert the right and to Telegraph Company, under the act of 1866, ask that the amount of compensation shall when it was conceded that that company had be ascertained made the proceeding a suit or the consent of the railroad company to occontroversy within the meaning of the ju- cupy its right of way? This view of the diciary acts, and made the case one—in legal case was distinctly announced by this court effect--for condemnation. I perceive no rea- when it said in the Pensacola Case that "the son why the court, in advance of a final de present case is satisfied if we find that Concree recognizing and enforcing that right, gress has power, by appropriate legislation, could not have instituted, as it was asked to prevent the states from placing obstructo do, an inquiry in respect of the compen- tions in the way of its [the telegraph's] usesation which the railroad company was en-fulness.” The sole question in the case was titled to receive for the proposed use of its as to the validity of a Florida statute, under right of way, and have made the payment which a Florida telegraph company was of such compensation a condition precedent given exclusive telegraphic rights over the to the exercise by the telegraph company of route to be occupied by the Western Union the right given by the act of 1866. Having Telegraph Company with the consent of the all the parties interested before it, could not railroad company; and the charter of the the court have directed a jury to be impan- Florida company authorized it to locate and eled to inquire, under the direction of the construct its lines within certain named court, as to the amount of compensation to counties of Florida, “along and upon any be paid to the railroad company ? Could it public road or highway, or across any wahave done any more under regular proceed- ter, or upon any railroad or private propings of condemnation? Instead of adopting erty for which permission shall first have that course, the circuit court proceeded up been obtained from the proprietors thereof." on the ground that even if the use of the de- This court held that the attempt of the state fendant's road by the telegraph company to exercise exclusive control over telegraphic would not interfere with ordinary travel on communications between it and other states and over it, it was compelled by the former was in conflict with the commerce clause of decisions of this court to hold that neither in the Constitution of the United States, and virtue of the act of 1866, nor of any other that the Florida statute was void so far as existing Federal statute, could the telegraph it assumed to grant exclusive privileges to company occupy the railroad's right of way a particular telegraph company. without the consent of the railroad com- Referring to the act of 1866 the court pany.

said: “It substantially declares, in the in. The cases in this court which, it is sup- terest of commerce and the convenient transposed, adopted this view of the act of 1866, mission of intelligence from place to place are Pensacola Teleg. Co. v. Western U. by the government of the United States and Teleg. Co. 96 U. S. 1, 24 L. ed. 708, and its citizens, that the erection of telegraph Western U. Teleg. Co. v. Ann Arbor R. Co. lines shall, so far as state interference is 178 U. S. 239, 243, 44 L. ed. 1052, 1054, 20 concerned, be free to all who will submit to Sup. Ct. Rep. 867. But the utmost inge- the conditions imposed by Congress, and that nuity is inadequate to show that the present corporations organized under the laws of question was involved in either of those one state for constructing and operating cases, or that the decision in either case de telegraph lines shall not be excluded by an. pended in the slightest degree on its solu- other from prosecuting their business withtion.

in its jurisdiction, if they accept the terms It appears from the Pensacola Case that proposed by the national government for the Western Union Telegraph Company had this national privilege. To this extent, certhe right to place and operate its lines up- tainly, the statute is a legitimate regulation on the right of way of a certain railroad of commercial intercourse among the states, company between points in Alabama and and is appropriate legislation to carry into points in Florida. There was no contro- execution the powers of Congress over the versy in that case between the railroad com- postal service. It gives no foreign corporapany and the telegraph company as to the tions the right to enter upon private propright of the latter to have its lines on the erty without the consent of the owner, and railroad right of way. The railroad com-'erect the necessary structures for its busi

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