THE DECISIONS OF THE Supreme Court of the United States AT OCTOBER TERM, 1895. {Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] 1] UNITED STATES, Appt., v. UNION PACIFIC RAILWAY COMPANY and WESTERN UNION TELEGRAPH COMPANY. (See S. C. Reporter's ed. 1-53.) Railroad and telegraph line from Missouri river to the Pacific ocean-duty of railroad company operating its own telegraph linepower of Congress-amending acts-agreements between railroad companies-transfer of franchise-right of telegraph companyequity jurisdiction. L The object of Congress in passing the acts of July 1, 1862, and the amendatory act of July 2, 1864, chap. 216, was the maintenance and operation of both a railroad and telegraph line from the Missouri river to the Pacific ocean, and governmental aid was given to accomplish that result. 2. Any company named in the act of 1862, and receiving the aid therein granted by the government, was, by that act and the amendatory acts of 1864 and 1874, required itself and through its own officers and employees to construct, maintain, and operate both a railroad and telegraph line, and could not assign or transfer to any other corporation its franchises in that regard. That the several railroads authorized by that act were empowered to arrange with certain telegraph companies to place their telegraph lines on the line of said railroads, and such transfer was to be a fulfillment on the part of said railroad companies of the provision of the act in regard to the construction of a telegraph line, did not affect the power of Congress to require the railroad company itself to maintain and operate the telegraph line, by its officers and employees alone. 5. It is entirely competent for Congress to add to, alter, or amend the acts of 1862 and 1864, so as to require the Union Pacific Railway Company to maintain and operate, by and through its own officers and employees, telegraph lines for railroad, government, commercial, and other purposes, and to exercise itself and alone all the telegraphic franchises conferred upon it. 6. 7. 8. The agreements of 1866, 1869, and 1871, between the Union Pacific Railway Company and the Western Union Telegraph Company,and between the Union Pacific Railroad Company and the Atlantic & Pacific Telegraph Company, by which the Western Union Company is given the monopoly of the use of the roadway of the railway company for telegraphic purposes, and transferring to the telegraph company the franchises given by the government to the railway company, are invalid and not binding on the railway company. The agreement of July 1, 1881, between the Western Union Telegraph Company and the Union Pacific Railway Company, is illegal as giving the former company exclusive rights in the use of the railroad for telegraph business, and as transferring to that company the telegraphic franchise granted by the government to the latter company, and is not authorized by the Idaho act of 1864 or by the act of 1862. 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 that has accepted the provisions of that act, and desires to use such roadway for its line in such manner as not to interfere with the ordinary travel thereon. 9. For any failure or refusal by the railway company to comply with the act of August 7, 1888, §§ 1, 2, the remedy of the United States is not restricted to an action at law by mandamus, but equity has jurisdiction to enforce a compliance with those sections. [No. 334.] The power reserved to Congress to add to, alter, or amend the acts of 1862 and 1864, authorized Congress to make such additions, alterations, or amendments as would secure the maintenance or operation by the railroad company, through its own officers and employees, of a telegraph line Argued October 18, 19, 1894. Decided Novem over its main line and branches. NOTE-As to right of telegraph and telephone companies to use public streets and erect poles therein; compensation; injunction; poles for street car propuldon; placing electric wires under surface of streets, ber 18, 1895. see note to St. Louis v. Western U. Teleg. Co. 37: 810. As to land grants to railroads, see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28: 794. AF PPEAL from a decree of the United States | section of this act, shall so operate their reCircuit Court of Appeals for the Eighth spective telegraph lines as to afford equal facilCircuit reversing the decree of the circuit ities to all, without discrimination in favor of court, and adjudging that one agreement be- or against any person, company, or corporation tween the Union Pacific Railway Company, whatever, and shall receive, deliver, and exEastern Division, and the Western Union Tele- change business with connecting telegraph lines graph Company was lawful, and that certain on equal terms, and affording equal facilities, and other agreements be annulled, between the without discrimination, for or against any one Union Pacific Railroad Company and the At-of such connecting lines; and such exchange of lantic & Pacific Telegraph Company, the business shall be on terms just and equitarights of which had been acquired by the West- ble." ern Union Telegraph Company, and that a If any railroad or telegraph company recertain other contract between the Union Pa-ferred to in the first section, or any company cific Railway Company and the Western Union operating such railroad or telegraph line, reTelegraph Company was in part valid. Decree fuses or fails, in whole or in part, to maintain of the circut court of appeals reversed, and and operate a telegraph line as provided in the decree of circuit court affirmed, with directions act of 1888 and the acts to which it is suppleto the circuit court to make a supplemental mentary. "for the use of the government or decree. the public, for commercial or other purposes, without discrimination," or refuses or fails to make or continue such arrangements for the interchange of business with any connecting telegraph company, then, by the 3d section, application for *relief may be made to the in-[5 terstate commerce commission, whose duty it shall be to ascertain the facts, and prescribe such arrangement as will be proper in the particular case. See same case below, 50 Fed. Rep. 28; 59 The facts are stated in the opinion. Messrs. Rush Taggart, John F. Dillon, Mr. Justice Harlan delivered the opinion of the court: This suit was brought by the United States against the Union_Pacific_ Railway Company and the Western Union Telegraph Company under the authority of the act of Congress of August 7, 1888 (25 Stat. at L. 382, chap. 772), supplementary to the act commonly known as the Pacific Railroad act of July 1, 1862 (12 Stat. at L. 489, chap. 120), and to the act of July 2, 1864 (13 Stat. at L. 356, chap. 216) and other acts amendatory of the act of 1862. By the 1st section of the above act of 1888, it is provided that all railroad and telegraph companies to which the United States have granted any subsidy in lands or bonds or loan of 4]*credit for the construction of either railroad or telegraph lines, and which, by the acts incorporating them, or by any amendatory or supplementary act, were required to construct, | maintain, or operate telegraph lines, and all companies engaged in operating such railroad or telegraph lines "shall forthwith and henceforward, by and through their own respective corporate officers and employees, maintain and operate, for railroad, governmental, commercial, and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph franchises conferred upon them and obligations assumed by them under the acts making the grants as aforesaid." The 2d section declares that any telegraph company, having accepted the provisions of U. S. Rev. Stat. tit. 65, Telegraphs, which should extend its line to any station or office of a telegraph line belonging to any one of the railroad or telegraph companies referred to in the first section, shall have the right and shall be allowed "to connect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient interchange of telegraph business between said companies; and such railroad and telegraph companies, referred to in the first The 4th section is in these words: "In order to secure and preserve to the United States the full value and benefit of its liens upon all the telegraph lines required to be constructed by and lawfully belonging to said railroad and telegraph companies referred to in the first section of this act, and to have the same possessed, used, and operated in conformity with the provisions of this act and of the several acts to which this act is supplementary, it is hereby made the duty of the Attorney General of the United States, by proper proceedings, to prevent any unlawful interference with the rights and equities of the United States under this act, and under the acts herein before mentioned, and under all acts of Congress relating to such railroads and telegraph lines, and to have legally ascertained and finally adjudicated all alleged rights of all persons and corporationswhatever claiming in any manner any control or interest of any kind in any telegraph lines. or property, or exclusive rights of way upon the lands of said railroad companies, or any of them, and to have all contracts and provisions of contracts set aside and annulled which have been unlawfully and beyond their powers entered into by said railroad or telegraph companies, or any of them, with any other person, company, or corporation." The 5th section subjects to fine and imprisonment any officer or agent of a company operating its railroads and telegraph lines who refuses or fails, in such operation and use, to afford and secure equal facilities to the government and the public, or to secure to each of said connecting telegraph lines equal advantages and facilities in the interchange of business as provided for, without any discrimination whatever for or adverse to the telegraph line of any or either of said connecting companies, or refuses to abide by or perform and carry out within a reasonable time the order or orders of the interstate commerce commission. The party aggrieved may also sue the company whose officer or agent violates the 160 provisions of the act for any damages thereby | dotte and Fort Riley, except for such as have sustained. 6]*The 6th section makes it the duty of all railroads and telegraph companies to report to the interstate commerce commission in relation to certain matters, and to file with that body copies of all contracts and agreements of every description between it and every other person or corporation in reference to the ownership, possession, maintenance, control, use, or operation of any telegraph lines or property over or upon its rights of way. The defendant, the Union Pacific Railway Company, is a corporation formed by the consolidation (under the authority of the above acts of Congress of July 1, 1862 (12 Stat. at L. 489, chap. 120) and July 2, 1864 (13 Stat. at L. 356, chap. 216), of the following companies: The Union Pacific Railroad Company, incorporated by the act of July 1, 1862; the Kansas Pacific Railway Company, formerly known as the Union Pacific Railway Company, Eastern Division, which latter company succeeded to the rights and powers of the Leavenworth, Pawnee, & Western Railroad Company, a Kansas corporation that accepted the aid provided by the act of July 1, 1862; and the Denver Pacific Railway & Telegraph Company, a corporation of Colorado. been already furnished and erected by said railway company, and also the cost of the wire and insulators for a telegraph line with one wire, between those points, except for such distance as the railroad company had already provided wires and insulators; to furnish and distribute along their road west of Fort Riley, as fast as the same was completed, suitable poles for a first-class telegraph line, and wires and insulators for a telegraph line with one wire; to supply and distribute suitable telegraph poles, as required from time to time; to repair and renew the line as might be necessary; to transport, free of charge, for the telegraph company all persons engaged in and material required for the construction, reconstruction, working, repairing, and maintaining said telegraph line; and to furnish a suitable telegraph office in the depot at Wyandotte, Kansas, free of charge, and pay one half of the salary of the operator in such office, or so much thereof as was necessary to save the telegraph company from loss at that office,such operator to be fully qualified to do the business of the railway company, and to be appointed and his salary fixed by the parties to the contract. The railway company further stipulated "not to transport any persons engaged in or property intended for the construction or repair of any other line of telegraph along their railway, except at the usual and regular rates [8 charged by said railway company for passengers and freight, nor give permission to nor make any agreement with any other telegraph company to construct or operate any telegraph line upon the lands or roadway of said railway company, without the consent in writing of the telegraph company. The above agreed to by said railway company so far as it has the The present suit proceeds on the ground that the Union Pacific Railway Company is conducting its business under certain contracts and agreements with the Western Union Telegraph Company that are not only repugnant to the provisions of the above act of 1888, but are inconsistent with the rights of the United States, and in violation of the obligations imposed upon the railway company by other acts of Congress. The relief asked was a decree annulling those contracts and agreements and compelling the railway company to main tain and operate telegraph lines on its road-right to do so." ways, as required by the act of 1888. By the final decree of the circuit court it was adjudged, among other things, that the following agreements be annulled and held for naught: An agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company; Two agreements, one of September 1, 1869, 7] and one of *December 14, 1871, between the Union Pacific Railroad Company and the At lantic & Pacific Telegraph Company, the rights of the latter company having been acquired, as is claimed, by the Western Union Telegraph Company; and, An agreement of July 1, 1881, between the Union Pacific Railway Company and the Western Union Telegraph Company. 50 Fed. Rep. 28. It will be well, at this point, to refer to the principal parts of the several agreements that were set aside and annulled by the final decree of the circuit court. By the agreement of October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company, the railway company agreed to pay to the telegraph company the cost of the telegraph poles that had been erected by the latter company along the railroad between Wyan The telegraph company agreed, upon its part, that it would erect poles, attach the insulators, and string the wire to be furnished or paid for by the railroad company, as provided, as fast as each section of 20 miles of railroad was completed; that the first wire should belong to the railway company, and be for their use exclusively after the second wire was put up, "but no commercial or paid business shall be transmitted by the railway company from any station where the telegraph company shall have an office, without the consent of the lat ter;" that if the business of the railway company should, in its opinion, require more than one wire, they might appropriate another wire, upon paying to the telegraph company the cost of such wire on the poles, the telegraph company to attach such other wire for the use of the company; that the business of the railway company of every kind, and the family, private, and social messages of its executive officers, should be transmitted, without charge, between all telegraph stations on the line of said roadway, and between all such stations and St. Louis, and over all other lines in Missouri, Kansas, Colorado, and New Mexico, then owned or controlled, or which might thereafter be owned or controlled, by the telegraph company, provided, so far as said lines in Colorado and New Mexico were concerned, and the road or roads of the Union Pacific |