telegraph company, therefore, within the limitations above specified, owes obedience to the State laws, notwithstanding it has accepted the provisions and benefits of the Post Roads Act. 12 It may be stated in this connection that it is a general principle that the State may legislate with binding effect within its territorial limits, where such enactments relate to the rights, duties and liabilities of citizens, and are not directed against commerce nor any of its regulations.13

§ 64. Same subject-Public and private property - Streets and highways-Abutting owners.- The Post Roads Act deals with public, and not private property. A telegraph company which has accepted its provisions cannot use streets or highways at its own pleasure and appropriate property rights therein to the injury of the public or of abutting owners. This statute does not, and cannot operate to deprive the State or local government absolutely of all control over its streets, nor the citizen of his individual property rights. State sovereignty within constitutional limits is not interfered with, the enactment extends only to National privileges. It does not confer an unrestricted right to appropriate the public property of the State or municipality, nor does it absolutely abridge any property rights of a public character created by authority of the

Justice Miller; Attorney-General of Mass. v. Western Un. Teleg. Co., 141 U. S. 40, 3 Am. Elec. Cas. 20, 24, 25, 35 L. Ed. 628, 11 Sup. Ct. 889, per Mr. Justice Gray. "Any telegraph company now organized, or which may hereafter be organized, under the laws of any State," etc., Act Congress, July 24, 1866, c. 230; Rev. Stat. U. S., § 5263. See § 52a herein.

12 See Attorney-General of Mass. v. Western Un. Teleg. Co., 141 U. S. 40, 3 Am. Elec. Cas. 20, 24, 11 Sup. Ct. 889, 35 L. Ed. 628, per Mr. Justice Gray; St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 37 L. Ed. 380, 39 Fed. 59, 4 Am. Elec. Cas. 102, 111, 13 Sup. Ct.

485, per Mr. Justice Brewer, citing Western Un. Teleg. Co. v. Massachusetts, 125 U. S. 530, 548, 21 Am. & Eng. Corp. Cas. 13, 31 L. Ed. 790, 8 Sup. Ct. 961, 2 Am. Elec. Cas. 57, 61, per Mr. Justice Miller. See also cases cited under first note to this section.

Interstate telegraph company claiming under Post Roads Act must comply with city regulations. City of Toledo v. Western Un. Teleg. Co., 107 Fed. 10, 46 C. C. A. 111, 52 L. R. A. 730.

13 Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819, cited with approval in Western Un. Teleg. Co. v. Tyler, 90 Va. 297, 4 Am. Elec. Cas. 816, 819, 18 S. E. 280, per Lewis, P.

State. The franchise granted cannot be construed to extend beyond what must have been the intent of Congress, even though its manifest object was to grant plenary power to such telegraph companies as might choose to avail themselves of the benefit of the enactment. But it was never intended thereby to override, under the claim of a constitutional power to regulate commerce, the constitutional rights of citizens or of the public. Compulsory proceedings are not authorized. The right conferred is only to use the public property designated. If private property, whether in city streets or country highways or elsewhere, is to be used in the exercise of the right, it must be obtained by the consent of the owner, or by the exercise of the power of eminent domain. The owner's easements of light, air and access cannot be impaired without compensation. This statute nowhere provides as to the private right of ownership in highways, and the only express limitation upon the right to maintain telegraph lines upon streets or highways which are military or post roads is, as above stated, that “such lines of telegraph shall be so constructed and maintained as interfere with the ordinary travel on such military or post roads." 14 Nor does this congressional enactment authorize the taking of State or municipal property without consent or compensation any more than the taking of private property for public purposes.15

not to

*

*

*

14 Act of Congress, July 24, 1866, c. 230, § 1; Rev. Stat. U. S., § 5263. See § 62 herein.

15" The Congress of the United States has no power to take private property for public purposes with out compensation, and it can no more take the property of a State or one of its municipalities than the property of an individual. The Acts of Congress, referred to in the answer, conferred on the defendant no right to use the streets and alleys of the city of Newport which belonged to the municipality. This was expressly held in St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 480,

The

and Postal Teleg. Cable Co. v. Baltimore, 156 U. S. 210, 15 Sup. Ct. 356, 39 L. Ed. 399; Postal Teleg. Cable Co. v. City of Newport, 25 Ky. L. Rep. 635, 8 Am. Elec. Cas. 25, 27, 76 S. W. 159, per Hobson, J. See Cumberland Teleg. & Teleph. Co. v. City of Evansville, 127 Fed. 187; case affd. 143 Fed. 238; American Teleg. & Teleph. Co. v. Harbor Creek Tp., 23 Pa. Super. Ct. 437.

Rev. St. U. S., §§ 5263-5268 (U. S. Comp. St. 1901, pp. 3579–3581), which authorize the construction of telegraph lines along "post roads," upon complying with certain conditions, does not affect the right of an abutting land owner to compensa

principles above stated are, however, fully supported by the authorities. 16

§ 65. Post Roads Act exclusive-Hostile legislation. The limitations, above set forth,17 upon the rights of telegraph companies availing themselves of the benefits of the Post Roads Act, cannot be extended so as to justify hostile legislation inconsistent with the scope, intent and purposes of such statute.

Neither the State nor local governmental authorities can prohibit telegraph companies, which claim the right so to do under this act of Congress, from entering their respective jurisdictions. No legislation can encroach upon the Federal constitutional power to regulate commerce, and the Post Roads Act is an exercise of this power. The telegraph is indispensable as a means of interstate communication. This power to regulate interstate commerce and to establish post-offices and post roads is exclusive of hostile legislation, and this is true as to the power to regulate telegraph companies in respect to interstate business, for the States can impose no regulations or restrictions upon, or impediments to, the freedom of that business. Nor may municipal authorities require the removal

18

18 United States: The purpose of the Post Roads Act" was to make the erection of telegraph lines on the post roads of the United States (the consent of the owners of the right of way being obtained or such right of way being condemned for telegraph purposes and compensation therefor made) free even against hostile legislation, to all corporations submitting to the conditions imposed by Congress." Western Un. Teleg. Co. v. American Un. Teleg. Co., 9 Biss. (C. C.) 72, 1 Am. Elec. Cas. 288, 290, per Harlan, J., a case of contract giving an exclusive right to one telegraph company over another, held invalid. That intercourse among the States and the transmission of intelligence between

them shall not be ob

structed
or unnecessarily incum-
bered by State legislation, and as
otherwise supporting the text here-
in as to hostile legislation, etc., see
also Pensacola Teleg. Co. v. West-
ern Un. Teleg. Co., 96 U. S. 1, 24
L. Ed. 708, 1 Am. Elec. Cas. 250,
255, 256, per Mr. Chief Justice
Waite, a case of State statute grant-
ing an exclusive right to maintain

telegraph lines, held in conflict with the Post Roads Act. Western Un. Teleg. Co. v. Pendleton, 122 U. S. 347, 30 L. Ed. 1187, 7 Sup. Ct. 1126, 18 Am. & Eng. Corp. Cas. 18, 2 Am. Elec. Cas. 49, 54 et seq., a case holding that a statute regulating telegraph companies is unconstitutional, in so far as interstate messages are concerned (revg. 98 Ind. 12, 8 Am. & Eng. Corp. Cas. 56, 48 Am. St. Rep. 692); Western Un. Teleg. Co. v. Attorney-General of Mass., 125 U. S. 530, 31 L. Ed. 790, 8 Sup. Ct. 961, 21 Am. & Eng. Corp. Cas. 13, 2 Am. Elec. Cas. 57, 61, per Mr. Justice Miller, Post Roads Act held not to exempt from taxation on shares of capital stock of telegraph company or of property within the State. Leloup v. Port of Mobile, 127 U. S. 640, 32 L. Ed. 311, 8 Sup. Ct. 1380, 21 Am. & Eng. Corp. Cas. 26, 12 Inter. Com. Rep. 134, 2 Am. Elec. Cas. 79, 83, 84 et seq., holding that a State cannot tax interstate commerce. Western Un. Teleg. Co. v. Mayor of New York, 38 Fed. 552, 2 Inter. Com. Rep. 533, 3 L. R. A. 449, 6 Ry. & Corp. L. Jour. 105, 2 Am.

of telegraph lines established upon the post or military roads of the United States. Although such corporations must submit to all proper and reasonable regulations of the local government, they will not be required to submit to ordinances or other legislative acts which do not regulate the management of the line, but are passed to destroy its existence. So, where a telegraph corporation, organized under State laws, has con