Alabama & V. Ry. Co. v. Cumberland Tel. & Tel. Co.

• Decision Date: 04 June 1906
• Citation: 41 So. 258,88 Miss. 438
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. CUMBERLAND TELEPHONE & TELEGRAPH COMPANY ET AL
• Court: Mississippi Supreme Court

41 So. 258

88 Miss. 438

ALABAMA & VICKSBURG RAILWAY COMPANY v. CUMBERLAND TELEPHONE & TELEGRAPH COMPANY ET AL

Supreme Court of Mississippi

June 4, 1906

FROM the chancery court of Lauderdale county, HON. JAMES L MCCASKILL, Chancellor.

The railway company, the appellant, was complainant in the court below; the Cumberland Telephone & Telegraph Company, a foreign corporation, was the only original defendant there but the Mississippi Telegraph Company, a domestic corporation, was made defendant by a supplemental bill. From a decree dissolving an injunction as to both defendants the complainants appealed to the supreme court.

The Cumberland Telephone & Telegraph Company, a Kentucky corporation, instituted eminent domain proceedings in Hinds county for the purpose of condemning a right of way for itself as a telephone company along the line of the Alabama &amp Vicksburg Railway Company between Jackson and Meridian. While this proceeding was pending, the railway company filed in the chancery court of Lauderdale county a bill for an injunction enjoining that proceeding. The Cumberland Telephone &amp Telegraph Company answered, making its answer a cross bill. The defendant company moved the court to dissolve the injunction, and the court overruled the motion and allowed the railway company time to answer the cross bill. Before this action of the court the Mississippi Telegraph Company, a Mississippi corporation, instituted eminent domain proceedings in Hinds county for the purpose of condemning a right of way along the complainant's tracks between Jackson and Meridian, and thereafter the said railway company filed a supplemental bill in this its chancey suit for the purpose of enjoining the Mississippi Telegraph Company alleging that it was a mere "dummy" company of the Cumberland Telephone & Telegraph Company. Thereafter the Mississippi Telegraph Company filed its demurrer to the supplemental bill. The railway company having failed to answer the cross bill as required by the order of the court, a decree pro confesso thereto was entered against it. On appeal the contention of the railway company was that the telephone company had no authority to exercise the right of eminent domain under the laws of the state, and that the Mississippi Telegraph Company was a "dummy" corporation organized for the purpose of enabling the Cumberland Telephone & Telegraph Company to do indirectly what it could not do directly. The Cumberland Telephone & Telegraph Company based its right of eminent domain on sec. 195 of the constitution of the state, declaring telephone companies to be common carriers.

Decree affirmed.

McWillie & Thompson, J. M. Boone and Fewell, Bozeman & Fewell, for appellant.

The main contention in this case on the part of the appellant is that appellees have no power to exercise the right of eminent domain for the purpose of doing a telephone business; and, if it be true that the Cumberland Telephone & Telegraph Company, as a matter of fact, does a telegraphic business, in addition to its telephone business, this would not give power to exercise the right of eminent domain for a telephone business; and the appellant, desiring to resist the condemnation of a right of way for telephone purposes, took no proof as to whether or not the Cumberland Company was engaged in some part of the state in the telegraph business, but asks that it be enjoined from condemning right of way for the purposes of a telephone business.

Appellees contend that in as much as the appellant has a contract with the Western Union Telegraph Company for the exclusive use of the right of way, that the Western Union Company is the party inspiring resistance on the part of the railway company, and that such an exclusive contract is against public policy. If we concede that such a contract exists between the railway company and the Western Union Company, and that the contract is void, this does not confer the power of eminent domain upon the appellees. This power can only be conferred by legislative enactment. The alleged bad faith of appellant in making resistance because of the contract with the Western Union Company as alleged, does not supply legislative enactment. It does not matter what motive induces the railway company to resist the condemnation of its right of way, if resistance is based upon the want of legislative authority in the appellees. The railway company has a right to forbid any corporation or person from entering upon or using its right of way, if it or he have no legal right to enter upon and use the same; and the question of the motive and the purposes for resisting cannot in any respect weaken the right to resist the entry. No amount of laches or bad faith on the part of the railway company can create a right in the Cumberland Company that does not otherwise exist. The power to exercise the right of eminent domain must be expressly conferred by a legislative enactment, and the fact that our constitution makes telephone companies common carriers does not confer upon them the power of eminent domain, for the reason that no statute has ever conferred such power upon any common carrier as such.

Statutes conferring the right of eminent domain will be construed strictly, and unless the letter of the law clearly confers the right it does not exist. Ligare v. Chicago, 32 Am. St. Rep., 179.

It is clear that the appellees recognize the force of our contention that a telephone is not included in a telegraph and further recognize the correctness of our contention that the Cumberland Company does not carry on a telegraphic business in this state, although the word "Telegraph" is in its name, by the fact that it has organized under a charter calling itself the "Mississippi Telegraph Company," limiting the operation of business under that charter between Jackson, Mississippi, and Meridian, Mississippi, and between Meridian aad West Point, Mississippi--the very identical territory covered by the application for condemnation in this and its companion case. The Mississippi Telegraph Company stands before this court by its demurrer admitting the allegations of the supplemental bill as to the character and purposes of its organization; admitting that the Cumberland Telephone & Telegraph Company does not do a telegraphic business, but has taken out a separate charter that it may do so. Admitting, for agument sake, that whatever complaint can be made of the Mississippi Telegraph Company touching its charter can only be made by the state in a quo warranto, it is nevertheless proper under the facts of this case to enjoin it from condemning a right of way for telephone purposes. In the face of the admission by the demurrer that it is simply organized as a "dummy" for the Cumberland Telephone & Telegraph Company, and for the purpose of exercising the power of eminent domain to aid that...