Western Union Telegraph Co. v. Pennsylvania Railroad

after stating the case as above, delivered the opinion of the court.

By an act of Congress, approved July 7, 1838, and by sub- ■ ■ sequent' acts, March 3, 1853, 10 Stat. 249 , 255, c. 146; sec. 3964, Rev. Stat., 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, 14 Stat. 221 , c. 230:

. “Be it enacted by the Senate and House of Representatives of

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 of 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 of 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 ofseach 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 tb any other corporation, association, or person -..Provided, however, That the United States may at any time after the expiration of five years from the date of 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 ascer

tained 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 ills 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 deters

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. 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 and Florida Railroad Company was transferred to the Pensacola and 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 and Louisville Railroad Company granted to the Westérn 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 acts 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

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- th,e 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 gran-t 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

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. 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.”

“No question arises as to the authority of Congress to pro-, vide for the appropriation of private property to the úses'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 aré granted.”[1]

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 telégraph 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 w.ay 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. 33 C. C. A. 113 . 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, if 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 thé specific performance of a contract. “ It- is not argued,” we said (p. 243), 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 companies1 the right to enter on private property without the consent of the owner, and erect the necessary structures for their busi

And further (p. 244):''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

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 -moré, 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 (p. 42), 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 , 11.”

We heed not dissent from these views or qualify the general language by which they were amplified and supported. Whatever riglits 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 a'gree- ■ ment be used to evade or escape the commands of the statute

St. Louis v. Western Union Telegraph Company, 148 U. S. 92 , 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 wTas 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

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 iye 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 com

In Kohl et al. v. United States, 91 U. S. 367 , acts of Congress were considered/ one providing for the acquisition of a site

In Sweet v. Rechel, Cherokee Nation v. Kansas Railway Co., and Kohl v. United States, all cited supra, 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.

■ 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 éxercise 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

A few more words 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 eases decided at circuit are cited for our consideration, and we will close this branch of our discussion bv a brief review of them.

In Postal Telegraph Cable Co. of Idaho v. Oregon Short Line Railroad Company, 104 Fed. Rep. 623 , and Postal Telegraph Cable Company v. Oregon Short Line R. R. Co., 114 Fed. Rep. 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 Fed. Rep. 842 .

In Postal Telegraph Cable Co. v. Southern Railway Co., 89 Fed. Rep. 190 , and Postal Telegraph Cable Co. v. Cleveland, C. & St. L. Ry. Co., 94 Fed. Rep. 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

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.

The Western Union Telegraph Company v. Ann Arbor R. R. Co., 33 C. C. A. 113 , and St. Paul M. & M. Ry. Co. v. Western Union Telegraph Co., 118 Fed. Rep. 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. Iri 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.” \

Counsel in advancing the argument exhibit 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 iftterpretation 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

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 et al v. United States, 91 U. S. 367 . It is not pertinent in this case. The acts of Congress-passed on in Kohl et al 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 it's 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 poliéy 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

Decree affirmed.

Mr. Justice Brewer concurred.[1]

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, haying 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. 271 , 283, c. 172; 10 Stat. 249 , 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

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.

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 , 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 Fed. Rep. 257 , said (p. 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 alt defendant’s command, then the court would adjust its order so as to give complainants substantial benefit of the condition, while not restraining defendant from the exercise of his 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

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 ot compensation the court reproduces from the opinion in Sweet v. Rechel, 159 U. S. 380 , 399, this detached sentence: “It is a condition precédent to the exercise of such power [eminent domain] that the statute make ■ provision for reasonable compensation to the owner.” But the court doqs 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 the Government. But it is a condition precedent to the exercise of such power that the statute make provision for reason- • able 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

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 ór 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. Thé bill alleges:

“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 he heard and determined and without any unnecessary delay.

“Yo.ur 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 qf 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 thé 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 ohe 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.'

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 , 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 thq 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 (p. $75): “Doubtless Congress might have provided the 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

In United States v. Jones, 109 U. S. 513 , which was a proceeding to condemn property for theuse of the United States, this court, referring to a certain proposition advanced by counsel, said (pp. 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. 106 , 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 á 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

• 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 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 impanelled 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

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. R. Co., 178 U. S. 239 , 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 linés 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

Referring to the act of 15(66 the court said (p. 11): “It substantially declares, in the interest of commerce and the convenient transmission of intélligence 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 corporation the .right ¡to ^nter upon'private property without the consent of the ;'¿wner and erect the necessary structures for its business; but ; it does provide that, whenever the consent of the owner is ob- ' 'tamed, no stkte 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 ■

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 isuses 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 Com

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 T866, 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. R. Co., 178 U. S. 239 , 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

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 Pensacolas 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 arid 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 refer

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 particu- • lar 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. All this is'now made possible, notwithstanding the decision of this court in United States v. Union Pacific Rail

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

■ For these reasons, I am constrained to dissent from the opinion and judgment of the court.

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 tó 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