Western Union Tel. Co. v. City of Richmond

• Decision Date: 09 December 1909
• Parties: WESTERN UNION TELEGRAPH CO. v. CITY OF RICHMOND.
• Court: U.S. Court of Appeals — Fourth Circuit

178 F. 310

WESTERN UNION TELEGRAPH CO. v. CITY OF RICHMOND.

United States Circuit Court, E.D. Virginia.

December 9, 1909

Rush Taggart and Addison L. Holladay, for complainant.

H. R Pollard, for defendant.

GOFF Circuit Judge.

The Western Union Telegraph Company, a corporation organized under the laws of the state of New York, filed the bill in this case against the city of Richmond, a municipal corporation existing under the laws of the state of Virginia. The cause of action is alleged to be between citizens of different states, and also as arising under the Constitution and laws of the United States.

It is claimed that complainant has been since the year 1851 engaged in the construction and operation of telegraph lines in all the states and territories of the United States and in the Dominion of Canada, and that in connection with submarine cables it has telegraphic communication with foreign countries; that its system comprises over 192,000 miles of poles and cables, over 900,000 miles of wire, over 23,000 offices, and that it transmits annually about 65,000,000 messages for the public, for the government of the United States, and for the governments of foreign countries; that as part of its system, connecting with its main office in the city of New York and thence to all the commercial centers of the world, it has constructed and now operates a telegraph line over and along the streets and alleys of the defendant city.

The bill alleges that, by an act of the Congress of the United States approved 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,' the provisions of which are substantially incorporated in sections 5263 to 5269 inclusive of the Revised Statutes of the United States (U.S. Comp. St. 1901 pp. 3579-3581), it was provided:

'Sec 5263. Any telegraph company now organized, or which may hereafter be organized, under the laws of any state, 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 law, and over, under, or across the navigable streams or waters of the United States; but 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.

'Sec. 5264. Any telegraph company organized under the laws of any state shall have the right to take and use from the public lands through which its lines of telegraph may pass, the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of its lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which their lines of telegraph may be located as may be necessary for their stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.

'Sec. 5265. The rights and privileges granted under the provisions of the act of July twenty-four, eighteen hundred and sixty-six, 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,' or under this title, shall not be transferred by any company acting thereunder to any other corporation, association, or person.

'Sec. 5266. Telegrams between the several departments of the government and their officers and agents, in their transmission over the lines of any telegraph company to which has been given the right of way, timber, or station lands from the public domain shall have priority over all other business, at such rates as the Postmaster-General shall annually fix. And no part of any appropriation for the several departments of the government shall be paid to any company which neglects or refuses to transmit such telegrams in accordance with the provisions of this section.

'Sec. 5267. The United States may, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all companies acting under the provisions of the act of July twenty-fourth, eighteen hundred and sixty-six, 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,' or under this title, at an appraised value, to be ascertained 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. 5268. Before any telegraph company shall exercise any of the powers or privileges conferred by law such company shall file their written acceptance with the Postmaster-General of the restrictions and obligations required by law.

'Sec. 5269. Whenever any telegraph company, after having filed its written acceptance with the Postmaster-General of the restrictions and obligations required by the act approved July twenty-fourth, eighteen hundred and sixty-six, 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,' or by this title, shall, by its agents or employes, refuse or neglect to transmit any such telegraphic communications as are provided for by the aforesaid act, or by this title, or by the provisions of section two hundred and twenty-one, title 'The Department of War,' authorizing the Secretary of War to provide for taking meteorological observations at the military stations and other points of the interior of the continent, and for giving notice on the northern lakes and seaboard of the approach and force of storms, such telegraph company shall be liable to a penalty of not less than one hundred dollars, and not more than one thousand dollars for each such refusal or neglect. (To be recovered by an action or actions at law in any district court of the United States.)'

Complainant shows that by an act of Congress approved June 8, 1872 (Act June 8, 1872, c. 335, 17 Stat. pp. 308, 309) all the waters of the United States during the time the mail is carried thereon, all railways and all parts of railways, all canals and plank roads, and all letter carrier routes established in any city or town for the collection and delivery of mail matter by carriers, were declared by Congress to be 'post roads,' and that by an act of Congress approved March 1, 1884, 'all public roads and highways, while kept up and maintained as such,' were declared to be 'post roads.' Act March 1, 1884, c. 9, 23 Stat. 3 (U.S. Comp. St. 1901, p. 2708).

Complainant says that, complying with the provisions of the act of July 24, 1866, it on or about the 8th day of June, 1867, duly filed its written acceptance with the Postmaster General of the United States of the restrictions and obligations of that act, and that thereby it became entitled to all the rights and privileges conferred by it, and burdened with all the obligations imposed by it, and that it has continuously, since the filing of that acceptance, fully performed all the obligations and requirements of that act.

Complainant alleges that, in compliance with the legislation mentioned, it has at all times carried for the government of the United States, over its lines situated along the streets and alleys of the city of Richmond, referred to in chapter 88 of the Richmond City Code of 1899, and especially the streets and alleys named in the ordinance entitled 'An ordinance to amend and reordain section 27 of chapter 88, Richmond City Code (1899), requiring telegraph, telephone, and electric light and power wires to be placed underground on certain streets of the city,' approved March 15, 1902, at rates far below the reasonable rates charged to and paid by individuals for similar services, communications relating to the meteorological and signal service, from the various stations thereof.

Complainant claims that all the streets and alleys of the city of Richmond are post roads, within the meaning of said acts of Congress, and that complainant has the right to construct, maintain, and operate lines of telegraph over and along all of them, in such manner as not to interfere with the ordinary travel thereon; that the grant by the United States, in and by the legislation mentioned, of the right to construct, operate, and maintain its lines of telegraph upon all streets and alleys of the city of Richmond was made upon a full, valuable, and continuing consideration, paid and rendered by complainant to the United States; that such consideration was the agreement of complainant shown by its acceptance of the act of Congress, and by the full and complete performance by it of all the duties imposed by the Congress; that thereby the right granted to complainant to construct and operate its lines of telegraph over and along said streets and alleys became complete and vested, and is in full force and effect; that its lines have been constructed so as not to interfere with the ordinary travel on the streets and alleys mentioned; and that it is entitled to all the rights, powers, and privileges conferred by the act of Congress of July 24, 1866.

The bill then recites that the defendant has enacted an ordinance concerning wires, poles, and conduits in, over, and under the streets of Richmond, published as chapter 88 of the Code of that city, and has also passed certain amendments thereto which are...