The act of Congress of July 24, 1866, 14 Stat. 221, Rev.Stat. §
§ 5263
et seq., giving telegraph companies the right to
construct and operate their lines through, along and over the
public domain, military or post roads and navigable waters of the
United States, was a legitimate regulation of commercial
intercourse by telegraph among the states and appropriate
legislation to carry into execution the power of Congress over the
postal service; it was merely an exercise of national power to
withdraw such intercourse from state control and interference.
This Court has already held in
Pensacola Telegraph Co. v.
Western Union Tel. Co., 96 U. S. 1, and
Western Union Tel. Co. v. Ann Arbor Railroad Co.,
178 U. S. 239, and
now follows those decisions that the Act of July 24, 1866, does not
confer upon telegraph companies the right to enter upon private
property without the consent of the owner or grant them the right
of eminent domain.
A railroad's right of way 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, but it is so far
private property as to be entitled to the protection of the
Constitution, so that it can only be taken under the power of
eminent domain, and a condition precedent to the exercise of the
power of eminent domain is that the statute conferring it make
provision for compensating the owner.
No statute of New Jersey makes railroad property subject to
occupation by telegraph companies under the act of Congress of
1866.
This is a bill in equity filed in the Circuit Court of the
District of New Jersey by the appellant against the appellee, the
Pennsylvania Railroad Company, to prevent the latter from removing
from various railroad companies' rights of way the telegraph lines
of the appellant. The bill was filed in aid of a petition on the
law side of the court, praying the court to issue its process or
take such modes of procedure as might be
Page 195 U. S. 541
agreeable to the principles and usages of law, to determine the
amount of compensation to be paid by appellant to appellee for the
use of the right of way of the appellee, and its branches and
connecting lines, to construct, maintain, and operate a line of
telegraph over and along such railways, subject to the conditions
and provisions named in the act of Congress of July 24, 1866. 14
Stat. 221, c. 230, Rev.Stat. §§ 5263
et seq.
The construction of this act of Congress is the main question in
the case.
The appellant, which we shall designate the telegraph company,
contends that, under certain acts of Congress, the roads of the
railroad company and all other railroads in the United States are
made post roads, and that, by the Act of July 24, 1866, the
telegraph company has the right to construct, maintain, and operate
lines of telegraph along said roads upon the payment of
compensation to the railroad company. In other words, the
contention is that, by the act of 1866, the telegraph company is
given the power of eminent domain to acquire the right to occupy
with its telegraph lines the rights of way of the railroad
company.
A summary of the bill is as follows: the telegraph company is a
New York corporation; the railroad company is a Pennsylvania
corporation. The New Jersey Railroad & Canal Company was
incorporated under the laws of New Jersey, and is the owner of a
railroad extending from Jersey City, in the State of New Jersey, to
the Delaware River at the City of Trenton, in said state, with
certain branches, which the bill describes. The railroad company is
the owner of a line of railroad extending from the City of
Philadelphia to the City of Pittsburgh, in the State of
Pennsylvania, and in possession and control of the railroads of the
New Jersey Railroad & Canal Company in New Jersey, under a
lease or leases for a period of 999 years from the first of July,
1871. By the laws of New Jersey, the said railroads were created
and made and are now public highways, and hence are subject to
occupation and use of telegraph companies
Page 195 U. S. 542
under the provisions and conditions of the Act of Congress of
July 24, 1866.
The telegraph company was organized in 1851, and began then to
construct and has constructed and acquired a continuous system of
telegraph lines which extends through all of the states and
territories of the United States and connects with telegraph lines
in the Dominion of Canada and with lines also in the Republic of
Mexico and South American Republics, and with and by submarine
cables with the systems of all telegraph lines of foreign
countries.
The system operated directly by the telegraph company consists
of over 192,000 miles of poles and cables, and over 900,000 miles
of wire, and an important part of the system and connected with its
main office in New York city, and with other lines leading to the
important cities of the West, is the lines of telegraph over and
along the lines of railway operated by the railroad company,
connecting Jersey City with Philadelphia, and connecting with other
lines of the system.
The lines of telegraph along the railways in New Jersey were
originally constructed by the American Telegraph Company, a
corporation of the State of New Jersey, with the consent of, or
under contracts and arrangement with, the railway company then
owning the said lines of railway, and were constructed more than
forty years ago, and since the twentieth of September, 1881, the
telegraph lines over the right of way of said railroads have been
maintained and operated and compensation paid therefor under the
provisions of a contract between the telegraph company and the
railroad company. The contract granted to the telegraph company the
right to place, maintain, and use upon the line of the right of way
of the railroad company, and of the railroads owned, operated, or
leased by it, a single line of telegraph poles (in certain cases
two were authorized), with the privilege of erecting and
maintaining thereon such number of wires as the telegraph company
might from time to time elect, said lines
Page 195 U. S. 543
to be located and placed under the direction of an officer of
the railroad company.
The telegraph company agreed to pay annually for the privileges
granted the sum of $75,000, in monthly installments of $6,250, and
to deliver to the railroad company certain poles and wire, which
were then on certain of their roads. The telegraph company also
agreed to transmit the messages of the railroad company at a
compensation which was stated.
The provisions for the termination of the agreement and in the
event of its termination are as follows:
"Thirteenth. This agreement is to continue in force for and
during the term of twenty years from its date, and shall be binding
upon the respective companies, their successors and assigns, and
neither party shall have the right to assign the whole, or any part
hereof, without the consent of the other, given in writing."
"
* * * *"
"Fifteenth. If any monthly payment herein provided for be not
made within sixty days after it shall have become due, and shall
have been demanded by written notice, delivered to the treasurer,
or an executive officer of the party in default, or if any other
covenant herein made shall not, after sixty days' written notice of
default and demand made by either party in the manner herein
provided, be fulfilled by the other party, the contract may at the
option of the party demanding such fulfillment, be rescinded, and
such rescission shall not relieve the party in default from
liability for any amount due, or for damages for nonfulfillment of
such covenant or of any other covenant."
"Sixteenth. If no new agreement be made by the parties hereto,
the telegraph company shall at the termination of this contract, or
at any time hereafter, upon receiving written notice from the
railroad company, remove, within six months from the receipt of
said notice, all of its poles and wires, and leave the property of
the railroad company in good condition
Page 195 U. S. 544
and free from the encumbrance thereof to the satisfaction of the
general manager or other proper officer of the railroad company,
and if not so removed, the railroad company may remove them at the
expense of the telegraph company:
Provided, however, That
the payment agreed to be made by the telegraph company to the
railroad company in the sixth clause hereof, and by the railroad
company in the eighth clause, shall not apply to the said six
months, the companies respectively hereby expressly agreeing to
waive the same."
The agreement contains the following provision:
"Any easement or right of way heretofore acquired by the
telegraph company upon any of the roads embraced in this agreement,
either directly by contract or by assignment of contracts or
agreements made by other companies with the railroad company, or
with any of the companies whose roads or property are embraced in
the schedule hereto attached, is hereby relinquished and abandoned,
and the rights and easements of the telegraph company upon the
right of way of said railroad company shall be such only as are
granted by this agreement, and shall cease with its
termination."
The agreement was carried out and the payments made as provided,
the last being made on the twentieth of June, 1902.
On the fourteenth of May, 1902, the railroad company notified
the telegraph company in writing to remove its poles, wires, and
other property from the right of way and property of the railroad
company and of the other companies mentioned in the agreement,
within six months from the first day of June, 1902. The notice
stated that, in default of compliance, the railroad company would
itself cause such poles, wires, and other property of the telegraph
company to be removed from the right of way at the expense of the
latter company.
It is alleged in the bill that, by reason of the facts set
forth, and by reason of the receipt of payments after the
twenty-first of September, 1901, and after the notice of removal,
the agreement was continued in force, and that the railroad company
had no right, notwithstanding the notice of May 14,
Page 195 U. S. 545
1902, to remove or cause to be removed from the line of its
railways the poles, wires, and telegraph property of the telegraph
company at the end of six months from the first day of June,
1902.
It is also alleged that the lines of telegraph have been
maintained and operated over the lines of railway without
interfering with the ordinary use and operation thereof, or the
ordinary travel thereon, and, as now located, maintained, and
operated, can be continued so as not to interfere with the future
operation and maintenance of the said railways, or the ordinary
travel upon them, subject only to such slight changes of some of
the poles of said lines as may be incident to the construction of
additional tracks upon said right of way, or shifting the tracks
already existing on said railways.
May 20, 1902, the president and general manager of the telegraph
company, in a letter addressed to the president of the railroad
company, acknowledged receipt of the notice of removal of May 14,
and stated that he understood that negotiations had been in
progress between the officers of the respective companies for a
renewal of the contract of September 20, 1881, and declared that he
would be glad to take up the matter actively either in New York or
in Philadelphia at the convenience of the president of the railroad
company. The following day, the president of the railway company
replied, stating that none of the companies named "desires to renew
or extend its contract with the Western Union Telegraph Company,"
and that the contract between the companies had terminated under
its terms on the twentieth of September, 1901, and the notice to
the telegraph company to remove its poles had been given in
accordance with the provisions of the contract. A willingness to
discuss any temporary arrangement which might be necessary during
the time allowed for the removal of the poles of the telegraph
company was expressed. A somewhat lengthy reply was made in which
the telegraph company claimed that, since some of the contracts
referred to by the railroad company were perpetual
Page 195 U. S. 546
in their terms, or ran during the life of the parties, they
could not be terminated by one party without the consent of the
other; asserted a right, under the laws of Congress and the laws
and Constitution of the State of Pennsylvania to maintain and
operate its lines of telegraph on the railroad company's roads,
subject only, at most, to make a fair and reasonable compensation
for such right, which it offered to pay, and requested, if the
railroad company declined to contract further with it, a meeting
for the purpose of agreeing upon the amount of such compensation,
or to submit the matter to arbitration. The railroad company
replied that the meeting requested would be useless, as the
telegraph company asserted rights upon the lines of the railroad
company which could not be conceded. It was stated in the reply
that the railroad company had agreed and contracted with the Postal
Telegraph Cable Company covering the railroads included in the
contract with the telegraph company, and that the Postal Telegraph
Cable Company would immediately commence transacting a commercial
telegraph business at the stations of the railroad company. The
railroad company offered to permit the telegraph company to do
business at the railroad stations until September 30 next ensuing
(1902), and, for the purpose of avoiding unnecessary loss to the
telegraph company, incident to the removal of its poles, the
railroad company expressed a willingness to purchase at a fair
valuation, such of the lines as it could make use of.
It is alleged in the bill that the notice given to the telegraph
company to remove its poles from the railroads, and the refusal of
the railroad company to negotiate further with the telegraph
company, were not induced from any compulsion or necessity to use
the space occupied by the telegraph lines, but that the purpose of
the railroad company is to place upon the lines of railway
telegraph lines to be owned or used by another telegraph company,
and it is alleged that the lines of the telegraph company will not
interfere with the ordinary travel and use of the railways.
Page 195 U. S. 547
The directors of the telegraph company accepted the Act of July
24, 1866, and filed an acceptance with the Postmaster General of
the United States June 8, 1867.
The acts of Congress hereinafter mentioned and set out are
referred to in the bill, and a full compliance therewith alleged,
whereby, it is further alleged, the telegraph company became and is
entitled to maintain its lines on the railroads of the railroad
company upon paying just compensation, the payment of which was
offered. The prayer is that the court order and decree the amount
of compensation to be paid by the telegraph company, or, if the
court order compensation to be ascertained at law, it then be
decreed that, upon payment of such compensation a perpetual
injunction issue.
A preliminary injunction was ordered. 120 F. 981. It was
reversed by the circuit court of appeals. 123 F. 33.
A controversy ensued upon the form of the decree. The circuit
court of appeals simply reversed the order of the circuit court
granting a preliminary injunction. The telegraph company moved that
the decree be modified so as to direct the dismissal of the bill.
The motion was refused, and the telegraph company took an appeal to
this Court. Subsequently the circuit court
sua sponte
entered an order dismissing the bill, and the telegraph company
appealed therefrom to the circuit court of appeals. The case was
then removed to this Court by certiorari.
Page 195 U. S. 557
MR. JUSTICE McKENNA, after stating the case as above, delivered
the opinion of the Court.
By an Act of Congress approved July 7, 1838, and by subsequent
acts, March 3, 1853, 10 Stat. 225, c. 146; Rev.Stat. § 3964; June
8, 1872, 17 Stat. 283, 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. 3, c. 9.
The act of 1866 is as follows:
"
Be it enacted by the Senate and House of Representatives
of
Page 195 U. S. 558
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 preempt and use such portion of the unoccupied
public lands subject to preemption, 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
Page 195 U. S. 559
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
Page 195 U. S. 560
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 Telegraph Company v.
Western Union Telegraph Co., 96 U. S. 1. The
language of the Court defining the rights conferred by the act has
recently been repeated and sanctioned in
Western Union
Telegraph Company v. Ann Arbor R. Co., 178 U.
S. 239. 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 Telegraph Co. v. Western Union Telegraph
Co., 96 U. S. 1, 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 fourteenth 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 twenty-fourth 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
Page 195 U. S. 561
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 post offices and post roads,
and, like other powers of the national government, could be
exercised "upon every foot of territory under
Page 195 U. S. 562
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 (p.
96 U. S. 11):
"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. "
Page 195 U. S. 563
And again (p.
96 U. S. 12):
"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 Union Telegraph Company v. Ann Arbor Railroad
Co., 178 U. S. 239. 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. 90 F. 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 companies the rights to enter on
private property without the consent of the owner and erect the
necessary structures for their business;
Page 195 U. S. 564
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
dicta, 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 Union Telegraph
Co. v. Massachusetts, 125 U. S. 530,
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
Page 195 U. S. 565
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
Telegraph Company v.
Texas, 105 U. S. 460, and
United States v. Union Pacific Railway Co. & Western Union
Telegraph Co., 160 U. S. 1. In the
first, the distinction which was necessary to make was between
intra- and interstate 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 Telegraph Co. v. Western Union Telegraph Co.,
96 U. S.
1,
96 U. S. 11."
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
Page 195 U. S. 566
constituting the Union Pacific Railway, passed in 1862, or the
supplementary act of 1888, 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 Union Telegraph Company,
148 U. S. 93, 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
Page 195 U. S. 567
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
Page 195 U. S. 568
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, Eminent Domain section 240, and cases
cited. We said in
Sweet v. Rechel, 159 U.
S. 380,
159 U. S. 399,
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 (p.
159 U. S. 402)
Cherokee Nation v. Southern Kansas Railway Co.,
135 U. S. 641. 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 (p.
135 U. S.
659):
"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 owner 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, acts of Congress were considered, one providing for
the acquisition of a site
Page 195 U. S. 569
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 (p.
91 U. S.
374):
"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, 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. Kansas Railway
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.
Page 195 U. S. 570
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. 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
N.Y., Susquehanna & Western Railroad v. Trimmer, 53
N.J.L. 1, 3, 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 & Reading Railroad Co. v. Hummell, 44
Pa. 375. 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 Schuylkill Valley R. Co. v. Reading Paper
Mills, 149 Pa. 18;
Philadelphia v. Ward, 174 Pa. 45;
Railway v. Peet, 152 Pa. 488.
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
Page 195 U. S. 571
with even more emphasis in
Cherokee Nation v. Southern
Kansas Ry. Co., supra.
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 Telegraph Cable Co. v. Oregon Short Line Railroad
Company, 104 F. 623, and
Postal Telegraph Cable Company v.
Oregon Short Line R. Co., 114 F. 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. 111 F.
843.
In
Postal Telegraph Cable Co. v. Southern Railway Co.,
89 F. 190, and
Postal Telegraph Cable Co. v. Cleveland, C.
& St.L. Ry. Co., 94 F. 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
Page 195 U. S. 572
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,
supra.
Western Union Telegraph Company v. Ann Arbor R. Co., 90
F. 379, and
St. Paul, M. & M. Ry. Co. v. Western Union
Telegraph Co., 118 F. 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."
Page 195 U. S. 573
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
Page 195 U. S. 574
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
Page 195 U. S. 575
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. *
* For concurring opinion of MR. JUSTICE BREWER,
see p.
195 U. S. 593,
post.
MR. JUSTICE HARLAN, dissenting:
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 post offices 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. 283, c.
172; 10 Stat. 255, c. 146; Rev.Stat. § 3964; 23 Stat. 3, c. 9.
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 disadvantage in matters
of business and intercourse as involved
Page 195 U. S. 576
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 24, 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. 221, c.
230. 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
Page 195 U. S. 577
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 24, 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 Pacific Railway Company & Western
Union Telegraph Company, 160 U. S. 1,
160 U. S. 44,
160 U. S. 49.
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 Ry. Co.,
135 U. S. 641,
135 U. S. 657;
Olcott v. Fon du Lac
County, 16
Page 195 U. S. 578
Wall. 678,
83 U. S. 694;
United States v. Joint Traffic Association, 171 U.
S. 505;
Wisconsin &c. R. Co. v. Jacobson,
179 U. S. 287.
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
Osborne v. Missouri
Pacific Railway Company, 147 U. S. 248,
147 U. S. 259,
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
F. 257, said (p.
147 U. S.
249):
"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
Page 195 U. S. 579
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.
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,
159 U. S. 399,
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 Ry. Co.,
135 U. S. 641.
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
Page 195 U. S. 580
not making provision for compensation, then the object
of citing
Sweet v. Rechel and
Cherokee Nation v.
Southern Kansas Ry. 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. Rechel and
Cherokee Nation v. Southern
Kansas Ry. 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:
Page 195 U. S. 581
"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 24, 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 24,
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.
Page 195 U. S. 582
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,
91 U. S.
375-376, 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
Page 195 U. S. 583
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 (p.
91 U. S. 376). . . . 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,
109 U. S.
518-519, 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 (pp.
109 U. S.
518-519):
"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
Boom Company v.
Patterson, 98 U. S. 403, requires no
constitutional recognition. The provision found in the Fifth
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
Page 195 U. S. 584
appropriating power. The proceeding for the
ascertainment 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
Page 195 U. S. 585
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 Tel. Co. v. Western Union Tel.
Co., 96 U. S. 1, and
Western Union Tel. Co. v. Ann Arbor R. Co., 178 U.
S. 239,
178 U. S. 243.
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
Page 195 U. S. 586
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 the 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
Page 195 U. S. 587
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 national 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
Page 195 U. S. 588
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 decided.
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
Page 195 U. S. 589
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 Tel. Co. v. Ann Arbor R.
Co., 178 U. S. 239,
178 U. S.
243-244, 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
Page 195 U. S. 590
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
Page 195 U. S. 591
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 Pacific
Railway,
Page 195 U. S. 592
160 U. S. 1, 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 24, 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
Page 195 U. S. 593
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.
BREWER, J., concurring:
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 Telegraph
Company v. Western Union Telegraph Company, 96 U. S.
1, and
Western Union Telegraph Company v. Ann Arbor
Railroad Company, 178 U. S. 239,
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
Page 195 U. S. 594
quarter of a century, neither changed by any judicial decisions
nor set aside by any congressional legislation, it ought not to be
disturbed except for the most cogent reasons.