San Antonio & A. P. Ry. Co. v. Southwestern Tel. & Tel. Co.

• Decision Date: 08 February 1900
• Citation: 55 S.W. 117
• Parties: SAN ANTONIO & A. P. RY. CO. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
• Court: Texas Supreme Court

Page 117

55 S.W. 117

SAN ANTONIO & A. P. RY. CO. v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

Supreme Court of Texas.

February 8, 1900.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by the Southwestern Telegraph & Telephone Company against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appealed to the court of civil appeals, which certified questions to the supreme court.

Baker & Ross and Robson & Duncan, for appellant. McLaurin & Wozencraft, for appellee.

BROWN, J.

The court of civil appeals for the Third supreme judicial district has certified to this court the following statement and questions: "The appellee is authorized to do business in Texas as a telegraph and telephone company, and is putting in operation a long-distance telephone system to and from different towns in the state of Texas. The appellee brought this action to have condemned certain portions of the right of was adjoining the appellant's railway line, for the purpose of planting and erecting its telephone poles, upon which, it appears from the evidence, it proposes to place telephone wires for the purpose of operating a long-distance telephone system. Electricity is an agent used in the operation of both long-distance telephone and electric telegraph lines. In connection with the above facts, we certify to the supreme court, for its answer, the following questions: "First. Do the statutes that relate to the exercise of the right of eminent domain in condemnation proceedings conferred upon telegraph companies apply to telephone companies, and authorize a like procedure by telephone companies? Second. If the above question is answered in the negative, then did the appellee have the right to institute and maintain the condemnation proceedings in question by reason of the fact that it was also authorized to construct telegraph lines as well as telephone lines? and in this connection it is well to state that we find that the line sought to be established and erected upon the appellant's right of way by the appellee was to be used as a long-distance telephone line."

To the first question we answer, "Yes." The following articles of the Revised Statutes were enacted by the legislature in the year 1871:

"Art. 698. Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters.

"Art. 699. Such companies are also authorized to enter upon any lands, whether owned by private persons in fee or in any less estate, or by any corporation, whether acquired by purchase or by virtue of any provision in the charter of such corporation, for the purpose of making preliminary surveys and examinations with a view to the erection of any telegraph lines, and from time to time to appropriate so much of said lands as may be necessary to erect such poles, piers, abutments, wires and other necessary fixtures for a magnetic telegraph, and to make such changes of location of any part of said lines as may from time to time be deemed necessary, and shall have a right of access to construct said line, and, when erected, from time to time, as may be required, to repair the same, and may proceed to obtain the right of way and to condemn lands for the use of the corporation in the manner provided by law in the case of railway corporations."

At that time telephones had been recently invented, and were not generally known, and it cannot be supposed that the legislature had telephones in mind when it used the word "telegraph." However, the fact that the telephone was not then in contemplation of the legislature does not control the construction of article 642, subd. 8; for, if the language used is broad enough to embrace a subsequently developed method, the later invention might be controlled by the pre-existing law, as if it had been in existence at the time the law was made. Attorney General v. Edison Tel. Co., 6 Q. B. Div. 254, 255. The term "telegraph" has been held in the following cases to include telephones: Franklin v. Telephone Co., 69 Iowa, 97, 28 N. W. 461; Iowa Union Tel. Co. v. Board of Equalization, 67 Iowa, 250, 25 N. W. 155; Wisconsin Tel. Co. v. City of Oshkosh, 62 Wis. 32, 21 N. W. 828; Duke v. Telephone Co., 53 N. J. Law, 341, 21 Atl. 460; Attorney General v. Edison Tel. Co., 6 Q. B. Div. 244; Northwestern Tel. Exch. Co. v. Chicago, M. & St. P. Ry. Co. (Minn.) 79 N. W. 315. Each of the cases holds that the word "telegraph," when used in a statute, includes the telephone, but the two cases of Attorney General v. Edison Telephone Co. and Duke v. Telephone Co., are the most directly in point. The former case was based upon this state of facts: In England there were statutes providing that "the postmaster general is to have the exclusive privilege of transmitting messages or other communications by any wire and apparatus connected therewith used for telegraphic communication or by any other apparatus for transmitting messages or other communications by means of electrical signals." Attorney General v. Edison Tel. Co., cited above. In that case the court said: "The result of the definition seems to be that any apparatus for transmitting messages by electric signals is a telegraph, whether a wire is used or not, and that any apparatus of which a wire used for telegraphic communication is an essential part is a telegraph, whether communication is made by electricity or not." The telephone company was organized to operate a telephone system in the city of London, and, under the law previously cited, the attorney general brought an action claiming that it was in violation of the statute of the kingdom, and the question turned upon whether or not the telephone was within the meaning of the act in relation to the telegraph. The court held the telephone to be embraced in the law. That case was very similar in its nature to this. The government was exercising its sovereign power in controlling and appropriating to itself the property of the citizen,—the telephone,—or, at least, the use of it, as is done in the case of eminent domain, where the right of way is taken for the use of the government, or, by its authority, for public use by a corporation or a natural person. The same rules of construction, therefore, we think would apply in this case as in that. Upon a very elaborate discussion and philosophical examination of the question, the court held that the term "telegraph" was "wide" enough to include the telephone, and the government was entitled to control its operation within the kingdom. In Duke v. Telephone Co., before cited, the...