St. Louis & S.F.R. Co. v. Southwestern Tel. & Tel. Co.

• Decision Date: 09 March 1903
• Docket Number: 1,800.
• Parties: ST. LOUIS & S.F.R. CO. v. SOUTHWESTERN TELEPHONE & TELEGRAPH CO.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F. 276

ST. LOUIS & S.F.R. CO. v. SOUTHWESTERN TELEPHONE & TELEGRAPH CO.

No. 1,800.

United States Court of Appeals, Eighth Circuit.

March 9, 1903

Syllabus by the Court.

A bill in equity for an injunction is the proper remedy in the state of Arkansas to restrain an unauthorized exercise of power of eminent domain.

Where a statute requires articles of incorporation to be signed by the president and directors, the fact that the president and the directors signed them is a compliance with the statutes notwithstanding the fact that they did not affix their official titled to their signatures.

The filing of the duplicate of the articles of incorporation with the clerk of the county selected by the corporation as its place of business is a sufficient compliance with the provisions of section 1334, Sandels & H. Dig., upon this subject. It is not necessary to file a duplicate in every county to which the business of the corporation extends.

A survey of a telephone or telegraph line is not an indispensable prerequisite to condemnation proceedings under section 2770, Sandels & H. Dig., where the data for a clear and substantial description and location of the line exist without it.

A description of the routes of lines of telegraph or telephone to be constructed, in the articles of incorporation of a telephone company, is not indispensable to the acquisition of the power to condemn the right of way for such lines, under sections 1326, 1328, Sandels & H. Dig., if the general purpose of conducting a telegraph or telephone business throughout the state is plainly therein.

Where a failure to agree is alleged in a petition for condemnation and is a condition precedent to the right to condemn, the fact that there was no such failure is no ground for an injunction against entry thereunder, because the owner has a perfect remedy at law by answer and trial in the condemnation proceedings.

Sec 23, art. 5, of the Constitution of Arkansas, which reads, 'No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length,' limits legislation which grants, modifies, or destroys rights, but it has no application to legislation which affects remedies and methods of procedure alone.

The act of March 31, 1885, Act No. 107, p. 176, Acts Ark. 1885 (sections 2757, 2758, 2770, Sandels & H. Dig.), which grants to telephone and telegraph companies the right to condemn the right of way along railroads, highways, and postroads, and provides that the proceedings thereunder shall be conducted as prescribed in sections 2770-2781, inclusive, Sandels & H. Dig., is constitutional and valid.

The necessity for the taking by a corporation of the easement or property sought in condemnation proceedings is a judicial question, to be determined by the court upon a consideration of the power of eminent domain granted to the corporation, and the facts and circumstances of the case.

Where the Legislature has granted to a telephone company the right to condemn an easement on the right of way of a railroad company for the construction and operation of a telegraph and telephone line, with a proviso that the ordinary use of the right of way by the railroad company for its purposes shall not be thereby obstructed, the issue regarding the necessity of the taking of the easement sought by the telephone company is limited to two questions, namely:

(1) Will the use of the right of way by the railroad company be substantially obstructed by the use of the easement sought?

(2) If the telephone company is to acquire an easement for its purposes on the railroad right of way, is the location and character of the easement which it describes and seeks to acquire such that this easement is necessary for its use?

The question whether the telephone company could construct and operate its lines on other property, so that there is no real necessity for it to acquire any easement on the railroad right of way, is not open to determination under such a law, because the Legislature has granted the right to acquire the easement notwithstanding the fact, which must have been patent to it, that telegraph and telephone lines might in every case be constructed elsewhere than upon the railroads and highways mentioned in the statute.

A corporation of the state of Arkansas has no right, by virtue of the laws of that state, to exercise the power of eminent domain in the Indian Territory.

B. R. Davidson (L. R. Parker, on the brief), for appellant.

T. P. Winchester, W. R. Martin, W. L. Terry, and W. J. Terry, for appellee.

On March 31, 1902, the Southwestern Telephone & Telegraph Company filed a petition in the circuit court for Sebastian county, in the state of Arkansas, to condemn an easement for the poles and wires of a telephone and telegraph business along the railroad and on the right of way of the St. Louis & San Francisco Railroad Company between Ft. Smith and Huntington, in the state of Arkansas, a distance of 32 miles. On April 11, 1902, the judge of the Sebastian county court made an order under sections 2770-2782, Sandels & Hill's Digest of the Laws of Arkansas, that upon the deposit of $1,500 the telephone company might enter upon the right of way of the railroad company, erect its poles, and string its wires. This proceeding for condemnation was removed to the Circuit Court of the United States. Afterwards, and on July 7, 1902, the railroad company filed in the latter court a bill in equity to perpetually enjoin the telephone company from entering upon or using any portion of the right of way of the railroad company for its telephone or telegraph business. A general demurrer was interposed to this bill by the telephone company, which was sustained by the court, and a decree was rendered dismissing the bill. This appeal assails this decree. The bill and the exhibits attached to it are voluminous. Its material averments must be considered in weighing the arguments for the appellant, and they will not be set forth at length here, but will be stated and considered in the opinion.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

This is a bill in equity to enjoin the telephone company from prosecuting condemnation proceedings to secure an easement upon the right of way of the railroad company. If, as counsel for the appellant contend, the bill fairly shows that the telephone company was not a corporation, that it had no power of eminent domain, and that there was no necessity for it to use any of the right of way of the railroad company for its telephone or telegraph business, then the railroad company had the right to prevent it from entering upon its right of way; and this suit in equity for an injunction was the proper method of obtaining this relief, under the practice and decisions in the state of Arkansas. Niemeyer v. Little Rock Junction Railway, 43 Ark. 120.

The question therefore, is whether or not the bill fairly shows that the defendant was without authority to condemn and secure the easement it seeks.

1. Counsel for the appellant argue that the telephone company never became a corporation, because of this state of facts which is disclosed by the bill and its exhibits: The statutes of Arkansas provided that any number of persons, not less than three, who by articles of agreement should associate, under any name assumed by them, to carry on any kind of manufacturing, mechanical, mining, or other lawful business, and who should comply with all the provisions of the act, should constitute a corporation (Sandels & H. Dig. Sec. 1326); that, before any such corporation should commence to do business, the president and directors thereof should file with the Secretary of State a true copy of their articles of association, signed by the president and a majority of the directors, and a sworn certificate of the purpose for which the corporation was formed, the amount of its capital stock, the amount actually paid in, the names of its stockholders, and the number of shares by each respectively owned; and that they should also file a duplicate with the clerk of the county in which the corporation was to transact business. Sections 1334, 1346. On April 13, 1896, Charles J. Glidden, James A. Chambers, and Arthur F. Adams associated themselves together, by articles of agreement, in writing, under the name of the Southwestern Telephone & Telegraph Company, to engage in the business of erecting and operating a telephone and telegraph. They held a meeting on that day, elected themselves directors, these directors chose Charles J. Glidden president of the corporation, and the president and directors signed and verified by their oaths the certificate required by section 1334. On the same day Glidden, Adams, and Chambers signed the articles of agreement and incorporation; but Glidden did not write the word 'President' after his signature, nor did the three parties who signed the articles of association write the word 'Directors' after their signatures. On April 4, 1896, the president and directors filed with the Secretary of State these articles, signed in this way, and the sworn certificate required by section 1334. Now, the alleged defect in this incorporation is that, whereas the statute required that the copy of the articles of incorporation filed with the secretary should be signed by the president and the directors, the copy filed was signed by the three individuals, Glidden, Adams, And Chambers. But these individuals were in fact the president and the directors of the corporation on April 4, 1896, when they filed the copy of the articles with the...