City of Richmond v. Southern Bell Telephone Telegraph Co

• Decision Date: 22 May 1899
• Docket Number: No. 264,264
• Citation: 19 S.Ct. 778,174 U.S. 761,43 L.Ed. 1162
• Parties: CITY OF RICHMOND v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO
• Court: U.S. Supreme Court

174 U.S. 761

19 S.Ct. 778

43 L.Ed. 1162

CITY OF RICHMOND

v SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

No. 264.

May 22, 1899.

C. V. Meredith and H. R. Pollard, for appellant.

Hill Carter, A. L. Holladay, and George H. Fearons, for appellee.

Mr. Justice HARLAN, delivered the opinion of the court.

The principal question in this case is whether the circuit court and the circuit court of appeals erred in holding that the appellee was entitled to claim the benefit of the provisions of the act of congress 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.' 14 Stat. 221, c. 230.

By that act—the provisions of which are preserved in sections 5263 to 5268, inclusive, title 65, of the Revised Statutes of the United States—it was provided:

'Section 1. 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 or 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 on such millitary or post the ordinary travel on such military or post 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 co struction, maintenance and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its 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 of each other.

'Sec. 2. 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. That the rights and privileges hereby granted shall not be transferred by any company acting under this act to 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 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. 4. 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.'

14 Stat. 221, c. 230.

Subsequently, by an act approved June 8, 1872, all the waters of the United States during the time the mail was carried thereon, all railways and parts of railways which were then or might thereafter be put in operation, all canals and all 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 contress to be 'post roads.' 17 Stat. 308, c. 335. These provisions are preserved in section 3964 of the Revised Statutes of the United States.

By an act approved March 1, 1884, 'all public roads and highways, while kept up and maintained as such,' were declared to be 'post routes.' 23 Stat. 3, c. 9.

Proceeding under an act of the legislature of New York of April 12, 1848, and acts amendatory thereof, certain persons associated themselves on the 11th day of December, 1879, under the name of the Southern Bell Telephone & Telegraph Company. The articles of association stated that the general route of the line or lines of the company should be from its office, in the city of New York, 'by some convenient route, through or across the states of New Jersey, Pennsylvania, Delaware, Maryland and Virginia, or otherwise, to the city of Wheeling or some other convenient point in the state of West Virginia, and thence to and between and throughout various cities, towns, points and places within that part of the state of West Virginia lying south of the Baltimore and Ohio Railroad, and within the states of Virginia, North Carolina, South Carolina, Georgia, Alabama and Florida, the said line or lines to connect the said cities of New York and Wheeling together, and the said other cities, towns, points and places, or some of them, or points within the same, together or with each other or with said cities of New York and Wheeling.'

By an ordinance passed by the city of Richmond on the 26th day of June, 1884, it was provided: '(1) Permission is hereby granted the Southern Bell Telephone and Telegraph Company to erect poles and run suitable wires thereon, for the purpose of telephonic communication munication throughout the city of Richmond, on the public streets thereof, on such routes as may be specified and agreed on by a resolution or resolutions of the committee on streets, from time to time, and upon the conditions and under the provisions of this ordinance. (2) On a y route conceded by the committee on streets, and accepted by the company, the said company shall, under the direction of the city engineer, so place its poles and wires as to allow for the use of the said poles by the fire alarm and police telegraph, in all cases giving the choice of position to the city's wires, wherever it shall be deemed advisable by the council or the proper committee to extend the fire alarm and police telegraph over such route. (3) The telephone company to furnish telephone exchange service to the city at a special reduction of ten dollars per annum for each municipal station. (4) No shade trees shall be disturbed, cut or damaged by the said company in the prosecution of the work hereby authorized without the permission of the city engineer and consent of the owners of property in front of which such trees may stand first had and obtained; and all work authorized by this ordinance shall be, in every respect, subject to the city engineer's supervision and control. (5) The ordinance may at any time be repealed by the council of the city of Richmond; such repeal to take effect twelve months after the ordinance of resolution repealing it becomes a law.'

The Code of Virginia adopted in 1887 (section 1287) provided that 'every telegraph and every telephone company incorporated by this or any other state, or by the United States, may construct, maintain and operate its line along any of the state or county roads or works, and over the waters of the state, and along and parallel to any of the railroads of the state, provided the ordinary use of such roads, works, railroads and waters be not thereby obstructed; and along or over the streets of any city or town, with the consent of the council thereof.'

Under date of February 13, 1889, the Southern Bell Telephone & Telegraph Company filed with the postmaster general its written acceptance of the restrictions and obligations of the above act of July 24, 1866.

The present suit was brought by that company in the circuit court of the United States against the city of Richmond.

The bill alleged that the plaintiff was engaged in the business of a 'telephone' company, and of constructing, maintaining, and operating 'telephone' lines in, through, and between the statutes of Virginia, West Virginia, North Carolina, South Carolina, Georgia, Alabama, and Florida; that it had been so engaged for a period of about 15 years, during which time it had continuously maintained at various places in said states and in Richmond, Va., an exchange, poles, wires, instruments, and all other apparatus and property necessary for the maintenance and operation of 'telephones and telephone lines,' and had erected and maintained through and along the certain streets and alleys of that city numerous poles and wires for conducting its business; that it had so conducted its business and erected and maintained its lines, wires, and poles under and by authority of the common council and board of aldermen of the city of Richmond, the legislature of Virginia, and acts of the congress of the United States; that its 'telephone' wires and poles were used by its subscribers, in connection with the Western Union Telegraph Company, under an agreement between the plaintiff and that company for the joint use of the poles and fixtures of both companies in sending and receiving messages; that its business was in part interstate commerce by reason of its connections with the above telegraph company; and that its status was that of a telegraph company under the laws of the United States and of the state of Virginia and of other states of the United States, and that it was and is in fact chartered as a telegraph company under the general laws of New York.

The plaintiff also alleged that it had accepted the act of congress of July 24, 1866; that by virtue of such acceptance it became entitled to construct, maintain, and operate lines of telephones over and along any of the military roads and post roads of the United States which had then been or might thereafter be dec ared such by law; that the streets, alleys, and highways of the city of Richmond are post roads of the United States; that the several...