graph lines and exercise by themselves alone all the telegraphic franchises conferred upon them and obligations assumed by them under the franchises granted. Said statute further provided for connection with said lines by telegraph companies, which had accepted the provisions of Title LXV, Telegraphs, of the Revised Statutes; also against discrimination; for application for relief, in case of refusal to make or continue arrangements for interchange of business, to the Interstate Commerce Commission, whose duties were specified - also for the security and preservation to the United States of the full benefit of its liens upon the railroad telegraph lines; also against unlawful interference with the rights and equities of the United States in the premises, and for proceedings by the Attorney-General therefor. Power was reserved to add to, alter or amend the act.8 The Union Pacific Railroad Company was formed by the consolidation, under authority of the Pacific Railroad Acts above noted, of several companies. The Atlantic and Pacific Railroad Company was authorized by its act of incorporation to lay out, locate and construct, furnish, maintain and enjoy a continuous railroad and telegraph line with the appurtenances. The company was also declared to be a post route and military road.10 The questions of the effect of discrimination by both said above-mentioned corporations, against telegraph companies, claiming under the Post Roads Act hereinafter noted; the construction of said acts and the right of said companies to make exclusive contracts, were ably and exhaustively considered by the Supreme and Circuit

8 Act of August 7, 1888, c. 772, 25 Stat. 382. See the Pensacola case cited in last note; also the Union Pacific case cited in next two sections.

9"The Union Pacific Railroad Company, incorporated by the Act of July 1, 1862, the Kansas Pacific Railway Company, formerly known as the Union Pacific Railway Company, Eastern Division, which latter company succeeded to the rights and powers of the Leavenworth, Pawnee and Western Railroad Company, a Kansas corporation that ac

cepted the aid provided by the Act of July 1, 1862, and the Denver Pacific Railway and Telegraph Company, a corporation of Colorado." See United States v. Union Pac. Ry. Co., and Western Un. Teleg. Co., 160 U. S. 1, 6 Am. Elec. Cas. 699, 16 Sup. Ct. 190, 40 L. Ed. 319, per Mr. Justice Harlan; United States v. Western Un. Teleg. Co., and Union Pacific Ry. Co., 160 U. S. 53, 58, 16 Sup. Ct. 210, 40 L. Ed. 337, per Mr. Justice Harlan.

10 Act of July 27, 1866, 14 Stat. 292.

Courts of the United States, and decided against exclusive contracts, and in favor of the telegraph companies claiming under the Post Roads Act.11

66

§ 31. Subsidy acts continued Reserved power as to telegraph lines - The Union Pacific case. As is said by Mr. Jus tice Harlan, in this case,12 the title of the act creating the Union Pacific railroad, indicated that the subsidy granted was to aid in the construction of both a railroad and telegraph line from the Missouri river to the Pacific ocean, and to secure to the Government the use of the same for postal, military and other purposes." This is clearly the import throughout, of the statute, not only as to the Union Pacific railroad, but also as to the other railroads mentioned therein, and in the Amendatory Act of 1864. It was further provided, that all of said railroad companies, or any two or more of them, might consolidate into one company, which might proceed thereafter "to construct said railroad and branches and telegraph line upon the terms and conditions provided in this act." Subsequently an act of Congress was passed,13 by which an addition was made to the Act of 1862, whereby the several companies were required, under penalty, to operate and use their roads and telegraph for all purposes of communication, travel or transportation, so far as the public and Government were concerned, as one connected, continuous line, without discrimination against other companies or against persons requiring the transmission of news and messages. As we have noted in the preceding section, the Union Pacific was formed by the con

11 United States v. Union Pacific Ry. Co., and Western Un. Teleg. Co., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319, 6 Am. Elec. Cas. 697, 699. See Union Pac. Ry. v. United States, 19 U. S. App. 531; Union Pac. Ry. v. United States, 59 Fed. 813; United States v. Western Union Teleg. Co., 50 Fed. 28; Mercantile Trust Co. v. Atlantic & Pacific R. R. Co., 63 Fed. 513, 910, 5 Am. Elec. Cas. 207, 214. These cases wil be con

14

sidered hereafter in this chapter. See Exclusive Contract.

12 United States v. Union Pacific Ry. Co., and Western Un. Teleg. Co., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319, 6 Am. Elec. Cas. 697, 718, case reverses 19 U. S. App. 531, 59 Fed. 813, affg. 50 Fed.

28.

13 June 20, 1874, 18 Stat. 111, c. 331.

14 To section 15 of said Act of July 1, 1862, 12 Stat. 489, 496, c. 120.

solidation of certain of the roads, under said Acts of 1862 and 1864. For the benefit, however, of certain telegraph companies that had already expended large sums in the construction of telegraph lines and to relieve the subsidized railroad companies from at least any present obligation to construct telegraph lines upon their respective rights of way, the Act of 1862 15 provided that arrangements might be made with said telegraph companies, "so that the present line of telegraph between the Missouri river and San Francisco may be moved upon or along the line of said railroad and branches as fast as said roads and branches are built," and said removal should be “considered a fulfillment on the part of said railroad companies of the provisions of this act in regard to the construction of said line of telegraph." In case, however, of disagreement, said lines and telegraph might be removed without prejudice to the rights of the railroad companies. A similar provision was contained in the act of Congress, known as the Idaho Act.16 Extended powers were granted therein to the United States Telegraph Company and their associates, for the construction of a line or lines of magnetic telegraph, between the Missouri river and San Francisco, on such routes as they might select.

$32. Subsidy acts Reserved power as to telegraph lines and the Union Pacific case continued. It appears, therefore, from a consideration of the several subsidy and amendatory. acts, that the object of giving governmental aid to the corporations named under the Act of 1862,17 was to promote the public interest and welfare and to entitle the Government at all times, and particularly in times of war, to the use and benefit of such railroad and telegraph lines, for postal, military and other purposes. Congress also reserved the power of exercising, at any time, the right to add to, alter, amend or repeal such act, due regard being had to the rights of the companies named therein. There was, however, no other express limitation upon this reservation of power. But as was de

15 § 19.

16 Of July 2, 1864, c. 220, 13 Stat. 373, entitled "An act for increased facilities of telegraph com

munication between the Atlantic and Pacific States and the Territory of Idaho."

17 See the two preceding sections.

clared by Mr. Justice Harlan in this case, "It would not be competent for Congress, under the guise of altering and amending the act in question, to impose upon the railroad company duties wholly foreign to the objects for which it was created, or for which governmental aid was given. Neither could it, by such alteration or amendment, destroy rights actually vested or disturb transactions fully consummated." 18 As we have already noted, Congress, subsequently in 1888,19 legislated with a design to enforce its policy of promoting the public interests and general welfare, and it may be that Congress passed the Act of 1888 because, in its judgment, the rights of the Government and of the public, in the matter of telegraphic communication, could be fully secured, or effectively guarded only by means of telegraph lines maintained and operated by a corporation deriving its power from the General Government and subject in respect to the general conduct of its affairs to general supervision and control." 20 Again, by virtue of the above-mentioned reservation of power, the court declared that it must be held that Congress intended to keep within its control the entire subject of railroad and telegraphic communication, between the Missouri river and the Pacific ocean, through the agency of the corporations which it had created, or which had accepted the governmental aid. It was also determined that said corporations could not make any arrangement or contract with telegraph companies which would prevent Congress, for all time, from otherwise providing, or which would relieve them from the obligation to exercise, by their officers. and agents, exclusively the telegraphic franchises granted,21 and this obligation would, of necessity, extend to the consolidated Union Pacific railroad and to its main lines and branches, since it originally extended to the railroad companies which were absorbed by said consolidation. Another principle was also involved in this Union Pacific case, and

18 United States v. Union Pacific Ry. Co., and Western Un. Teleg. Co., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319, 6 Am. Elec. Cas. 697, 733, citing Sinking Fund Cases, 99 U. S. 700, 718, 719, 720. 19 Act of August 7, 1888, c. 772,

25 Stat. 382, given in substance. See § 30 herein.

20 United States v. Union Pacific, Ry. Co., etc., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319, 6 Am. Elec. Cas. 734, 735, per Mr. Justice Harlan.

21 Citing numerous cases.

that was, that the charter of said railroad imposed upon it the duty of constructing, operating and maintaining a line of telegraph for commercial and other purposes, which was in its nature a public duty. The conferred right to operate a telegraph line and to collect tolls for its use was the most valuable part of the franchise. The railroad company had no right to transfer, alienate or divest itself of its powers, duties and trusts, without express authority of Congress, for they had been granted for a large consideration and for a great public purpose, upon a promise to perform as granted, or in accordance with the accepted terms of the grant. Upon the facts, therefore, and for the reasons stated, an agreement would be invalid, which attempted to transfer to a telegraph company the telegraphic franchises granted, to be exclusively exercised by the transferee, except as to so much only of the telegaph wires as should be required by said railroad company for the necessities of its own business. Such agreement would also be void in view of the power conferred by Congress upon telegraph companies, under the Post Roads Act and amendatory or additional acts.22 It was also held, that Congress, in view of the aforesaid several acts and amendments, could require any railroad company which received the aid granted, to maintain and operate, through its own officers and employees, exclusively, telegraph lines on or over its roadways, to be used for railroad, governmental, commercial or other purposes, and that such railroad should itself, alone, exercise the telegraphic franchises conferred by the acts of Congress, the reservation of power in Congress being sufficient for said purpose, subject to the limitations above noted.23

$33. Compensation Telegraphic services for United States - Western Union case - Generally. We have considered in the three preceding sections the several subsidy acts and grants in aid of railroad and telegraph lines; the consolidation of

22 Act of Congress, July 24, 1866, 14 Stat. 221, c. 230; Act of June 8, 1872, 17 Stat. pp. 308, 309; U. S. Rev. Stat., § 3964.

23 United States v. Union Pacific Ry. Co., and Western Un. Teleg.

Co., 160 U. S. 1, 16 Sup. Ct. 190, 40 L. Ed. 319, 6 Am. Elec. Cas. 697, revg. 19 U. S. App. 531, 59 Fed. 813, affg. 50 Fed. 28. The above two sections are in substance the opinion of Mr. Chief Justice Harlan.