THE DECISIONS

OF THE

Supreme Court of the United States

AT

OCTOBER TERM, 1895.

[Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.]

4. The power reserved to Congress to add to, alter, or amend the acts of 1862 and 1864, authorized Congress to make such additions, alterations, or amendments as would secure the maintenance or operation by the railroad company, through its own officers and employees, of a telegraph line Argued October 18, 19, 1894. Decided Novem

NOTE.-As to right of telegraph and telephone companies to use public streets and erect poles therein; compensation; injunction; poles for street car propul- As to land grants to railroads, see note to Kansas sion; placing electric wires under surface of streels, P. R. Co. v. Atchison, T. & S. F. R. Co. 28: 794.

APPEAL from a decree of the United States section of this act, shall to operate their re

spective telegraph lines as to afford equal facilities to all, without discrimination in favor of or against any person, company, or corporation whatever, and shall receive, deliver, and exchange business with connecting telegraph lines on equal terms, and affording equal facilities, and without discrimination, for or against any one of such connecting lines; and such exchange of business shall be on terms just and equitable."

If any railroad or telegraph company re

Circuit Court of Appeals for the Eighth Circuit reversing the decree of the circuit court, and adjudging that one agreement between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company was lawful, and that certain other agreements be annulled, between the Union Pacific Railroad Company and the Atlantic & Pacific Telegraph Company, the rights of which had been acquired by the Western Union Telegraph Company, and that a certain other contract between the Union Pa-ferred to in the first section, or any company cific Railway Company and the Western Union operating such railroad or telegraph line, reTelegraph Company was in part valid. Decree fuses or fails, in whole or in part, to maintain of the circut court of appeals reversed, aud and operate a telegraph line as provided in the decree of circuit court affirmed, with directions act of 1888 and the acts to which it is suppleto the circuit court to make a supplemental mentary. "for the use of the government or decree. the public, for commercial or other purposes, without discrimination," or refuses or fails to make or continue such arrangements for the interchange of business with any connecting telegraph company, then, by the 3d section. application for *relief may be made to the in [5 terstate commerce commission, whose duty it shall be to ascertain the facts, and prescribe such arrangement as will be proper in the particular case.

See same case below, 50 Fed. Rep. 28; 59
Fed. Rep. 813, 4 Inters. Com. Rep. 705.

The facts are stated in the opinion
Mr. Lawrence Maxwell, Jr., Solicitor
General, for appellant.

Messrs. Rush Taggart, John F. Dillon, John M. Thurston, and Jeremiah M. Wilson for appellees.

Mr. Justice Harlan delivered the opinion of the court:

This suit was brought by the United States against the Union Pacific Railway Company and the Western Union Telegraph Company under the authority of the act of Congress of August 7, 1888 (25 Stat. at L. 882, chap. 772), supplementary to the act commonly known as the Pacific Railroad act of July 1, 1862 (12 Stat. at L. 489, chap. 120), and to the act of July 2, 1864 (13 Stat. at L. 356, chap. 216) and other acts amendatory of the act of 1862.

By the 1st section of the above act of 1888, it is provided that all railroad and telegraph companies to which the United States have granted any subsidy in lands or bonds or loan of 4]*credit for the construction of either railroad or telegraph lines, and which, by the acts incorporating them, or by any amendatory or supplementary act, were required to construct, maintain, or operate telegraph lines, and all companies engaged in operating such railroad or telegraph lines "shall forthwith and hence forward, by and through their own respective corporate officers and employees, maintain and operate, for railroad, governmental, commercial, and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph franchises conferred upon them and obligations assumed by them under the acts making the grants as aforesaid."

The 2d section declares that any telegraph company, having accepted the provisions of U. S. Rev. Stat. tit. 65, Telegraphs, which should extend its line to any station or office of a telegraph line belonging to any one of the railroad or telegraph companies referred to in the first section, shall have the right and shall be allowed "to connect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient interchange of telegraph business between said companies; and such railroad and telegraph companies, referred to in the first

The 4th section is in these words: "In order to secure and preserve to the United States the full value and benefit of its liens upon all the telegraph lines required to be constructed by and lawfully belonging to said railroad and telegraph companies referred to in the first section of this act, and to have the same possessed, used, and operated in conformity with the provisions of this act and of the several acts to which this act is supplementary, it is hereby made the duty of the Attorney General of the United States, by proper proceedings, to prevent any unlawful interference with the rights and equities of the United States under this act, and under the acts herein before mentioned, and under all acts of Congress relating to such railroads and telegraph lines, and to have legally ascertained and finally adjudicated all alleged rights of all persons and corporations whatever claiming in any manner any control or interest of any kind in any telegraph lines or property, or exclusive rights of way upon the lands of said railroad companies, or any of them, and to have all contracts and provisions of contracts set aside and annulled which have been unlawfully and beyond their powers entered into by said railroad or telegraph companies, or any of them, with any other person, company, or corporation."

The 5th section subjects to fine and imprisonment any officer or agent of a company operating its railroads and telegraph lines who refuses or fails, in such operation and use, to afford and secure equal facilities to the government and the public, or to secure to each of said connecting telegraph lines equal advantages and facilities in the interchange of business as provided for, without any discrimination whatever for or adverse to the telegraph line of any or either of said connecting companies, or refuses to abide by or perform and carry out within a reasonable time the order or orders of the interstate commerce commission. The party aggrieved may also sue the company whose ollicer or agent violates the

provisions of the act for any damages thereby sustained.

6]*The 6th section makes it the duty of all railroads and telegraph companies to report to the interstate commerce commission in relation to certain matters, and to file with that body copies of all contracts and agreements of every description between it and every other person or corporation in reference to the ownership, possession, maintenance, control, use, or operation of any telegraph lines or property over or upon its rights of way.

The defendant, the Union Pacific Railway Company, is a corporation formed by the consolidation (under the authority of the above acts of Congress of July 1, 1862 (12 Stat. at L. 489, chap. 120) and July 2, 1864 (13 Stat. at L. 356, chap. 216). of the following companies: The Union Pacific Railroad Company, incorporated by the act of July 1, 1862; the Kansas Pacific Railway Company, formerly known as the Union Pacific Railway Company, Eastern Division, which latter company succeeded to the rights and powers of the Leavenworth, Pawnee, & Western Railroad Company, a Kansas corporation that accepted the aid provided by the act of July 1, 1882; and the Denver Pacific Railway & Telegraph Company, a corporation of Colorado.

dotte and Fort Riley, except for such as bave been already furnished and erected by said railway company, aud also the cost of the wire and insulators for a telegraph line with one wire, between those points, except for such distance as the railroad company had already provided wires and insulators; to furnish and distribute along their road west of Fort Riley, as fast as the same was completed, suitable poles for a first-class telegraph line, and wires and insulators for a telegraph line with one wire; to supply and distribute suitable telegraph poles, as required from time to time; to repair and renew the line as might be necessary; to transport, free of charge, for the telegraph company all persons engaged in and material required for the construction, reconstruction, working, repairing, and maintaining said telegraph line; and to furnish a suitable telegraph office in the depot at Wyandotte, Kansas, free of charge, and pay one half of the salary of the operator in such office, or so much thereof as was necessary to save the telegraph company from loss at that office,such operator to be fully qualified to do the business of the railway company, and to be appointed and his salary fixed by the parties to the contract.

The railway company further stipulated "not to transport any persons engaged in or property intended for the construction or repair of any other line of telegraph along their railway, except at the usual and regular rates [8 charged by said railway company for passengers and freight, nor give permission to nor make any agreement with any other telegraph company to construct or operate any telegraph line upon the lands or road way of said railway company, without the consent in writing of the telegraph company. The above agreed to by said railway company so far as it has the

The present suit proceeds on the ground that the Union Pacific Railway Company is conducting its business under certain contracts and agreements with the Western Union Telegraph Company that are not only repugnant to the provisions of the above act of 1888, but are inconsistent with the rights of the United States, and in violation of the obligations imposed upon the railway company by other acts of Congress. The relief asked was a de cree annulling those contracts and agreements and compelling the railway company to maintain and operate telegraph lines on its road-right to do so." ways, as required by the act of 1888.

By the final decree of the circuit court it was adjudged, among other things, that the following agreements be annulled and held for naught:

An agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company;

Two agreements, one of September 1, 1869, 7] and one of *December 14, 1871, between the Union Pacific Railroad Company and the At lantic & Pacific Telegraph Company, the rights of the latter company having been acquired, as is claimed, by the Western Union Telegraph Company; and,

The telegraph company agreed, upon its part, that it would erect poles, attach the insulators, and string the wire to be furnished or paid for by the railroad company, as provided, as fast as each section of 20 miles of railroad was completed; that the first wire should belong to the railway company, and be for their use exclusively after the second wire was put up, "but no commercial or paid business shall be transmitted by the railway company from any station where the telegraph company shall have an office, without the consent of the latter;" that if the business of the railway company should, in its opinion, require more than one wire, they might appropriate another wire, upon paying to the telegraph company the cost of such wire on the poles, the telegraph company to attach such other wire for the use of the company; that the business of the railway company of every kind, and the family, private, and social messages of its executive officers, should be transmitted, without charge, between all telegraph stations on the line of said roadway, and between all such stations By the agreement of October 1, 1866, between and St. Louis, and over all other lines in Misthe Union Pacific Railway Company, Eastern souri, Kansas, Colorado, and New Mexico, Division, and the Western Union Telegraph then owned or controlled, or which might Company, the railway company agreed to pay thereafter be owned or controlled, by the teleto the telegraph company the cost of the telegraph company, provided, so far as said lines graph poles that had been erected by the latter in Colorado and New Mexico were concerned, company along the railroad between Wyan- and the road or roads of the Union Pacific

An agreement of July 1, 1881, between the Union Pacific Railway Company and the Western Union Telegraph Company. 50 Fed. Rep. 28.

It will be well, at this point, to refer to the principal parts of the several agreements that were set aside and annulled by the final decree of the circuit court.

Railway Company, Eastern Division, were, at the time, in process of construction towards Santa Fé or Denver, or both, all such business should be transmitted free of charge over all other lines then or thereafter to be owned or controlled by the telegraph company within the United States, to an amount not ex

ceeding $4,000 per annum, with a rebate of one half of regular tariff charges for all in excess of that amount; that until a second wire 9] was put up, *both parties could use the first wire, the business of the railway company having preference; and if either wire was in terrupted or required by the United States, both parties might use the other one as far as practicable, but without delay or charge to the railway company; that the telegraph company should furnish all main batteries required for the efficient working of the telegraph line provided for, and keep the line in good working order, without expense to the railway company, except for the materials which the latter had agreed to supply.

the United States, as set forth in the charter of the railroad company, and on condition that the telegraph company should fully perform all duties that were or might be imposed upon the railroad company by its charter or by the laws of the United States.

It was further stipulated in that agreement that the telegraph company should proceed at once, as soon as arrangements were perfected for extending its line to San Francisco, to put two additional wires, fully equipped and furnished, on the poles demised along the whole length of its line; the railroad company to maintain and keep in repair such poles, wires, and equipments at its expense during the period of such demise, until from age or other cause they were required to be renewed, in which case the telegraph company should meet the cost of renewal; that the railroad company should at its own expense employ, during a period of twenty-five years, suitable persons to operate said telegraph at its own stations, other than at Omaha and such other stations as reAgain: That "the railway company may es quired, for the business of both parties, operatablish, at their own expense, as many offices tors in addition to those needed by the railroad as they require, and at all places where the company; that the railroad company should telegraph company has no separate office the have the right free of expense to the constant employees of the railway company shall, so and perpetual use of two of the wires when relong as it may not interfere with the business quired for its business, and the free use for its of said railway company, receive, transmit, business of the whole line of telegraph, which and deliver such commercial or paid business should then or thereafter belong to or be conas may be offered at the tariff rates of the tele- trolled or operated by the telegraph company, graph company, provided such paid business to and from all parts of the United States, for does not amount to enough to pay the ex- all purposes connected with the management penses of a separate telegraph office, and shall of the road or its business; that the telegraph account for and pay over to the latter, company should have such preferential privimonthly, the amount thereof at such rates; leges and facilities for its business as are usually and concerning such business, all rules, regu- granted by railroad companies in contracts of lations, and orders of the telegraph company connection with telegraph companies; and that applicable thereto shall be observed; but said the railroad company should "afford all other railway company shall not be amenable in any telegraph companies *only such facilities [11 way to said telegraph company for the acts or as by law they now are or may hereafter be reoperations of said agents, otherwise than to quired to afford as common carriers or otherwise remedy the difficulty in future;" that each in which shall not be included the privilege of party, at its own expense, should have the using hand cars or stopping trains except at right to add as many lines as its business re- regular stations, or transporting the officers or quired; that it would perform without charge servants of such companies, except on regular for the railway company what should be de- passenger trains at regular rates of fare, or of cided by competent authority to be its tele-transporting material for such companies or graph obligations to the government of the United States; and that a telegraph line should be constructed on the road of the railway company from Leavenworth to Lawrence at such time, between May 31, 1867, and September 1, 1868, as that company might decide, and upon the same terms and conditions as that west of Fort Riley.

persons (other than the parties of the first part), except on regular freight trains and at the usual rates of freight, unless the facilities aforesaid, or some of them, shall be required by law to be afforded such companies or persons.'

poses of both the original and supplementary contract the road of the railroad company "demised by said original contract shall be deemed and taken to terminate at the junction of the Union Pacific Railroad Company with the Central Pacific Railroad Company, as now established, which junction is at a point about five miles west of Ogden, and all the rights of the parties under said contract and supplement shall be made to conform to this modification."

These companies entered into a supplementary agreement on the 14th day of December, 1871, by which the original contract was modiBy the agreement of September 1, 1869, be- fied in certain particulars that need not be set tween the Atlantic & Pacific Telegraph Com-out, and which provided that for all the purpany and the Union Pacific Railroad Company, the railroad company, in consideration of thirty-three thousand shares of the stock of 10]the telegraph *company (for an increase of whose stock the agreement made provision), dismissed and leased to that telegraph company "all its telegraph line, wires, poles, instruments, offices, and other property by it possessed appertaining to the business of telegraphing for the purpose of sending messages and doing a general telegraphic business," to have and to hold during the whole term of the charter of the telegraph company, and any renewals thereof, subject to the rights of

The agreement between the Western Union Telegraph Company and the Union Pacific Railway Company of July 1, 1881, recites that the former corporation had acquired all