State v. Cent. N.J. Tel. Co.

• Decision Date: 24 February 1891
• Citation: 21 A. 460,53 N.J.L. 341
• Parties: STATE (DUKE, Prosecutor) v. CENTRAL NEW JERSEY TEL. CO. et al. SAME (Foster, Prosecutor) v. SAME.
• Court: New Jersey Supreme Court

21 A. 460

53 N.J.L. 341

STATE (DUKE, Prosecutor)

v. CENTRAL NEW JERSEY TEL. CO. et al.

SAME (Foster, Prosecutor)

v. SAME.

Supreme Court of New Jersey.

Feb. 24, 1891.

(Syllabus by the Court.)

Two writs of certiorari, with a single return to both, argued together. These writs of certiorari bring up an order made by a justice of the supreme court, appointing commissioners to assess and appraise the damages which the prosecutors may sustain by reason of the erection of a telegraph or telephone line over their land. The petition of the company upon which the appointment was made sets out that the petitioner is a corporation organized under the provisions of "An act to incorporate and regulate telegraph companies" and the acts supplementary thereto. Revision, p. 1174. That the object of the corporation is to build a line of telegraph for telegraphic or telephonic communication, or both, within and through certain counties in the state of New Jersey, to various cities, towns, boroughs, and villages and other convenient localities for said business therein. That, in addition to these uses of said line as hereinafter mentioned, to establish, let, conduct, and manage private or other telegraphic or telephonic lines, or both, and instruments and other means and appliances for the use of individuals, firms, corporations, municipalities, and others, and to carry on a general telegraph and telephone business, either or both, for all purposes whatsoever, upon the whole of said line, in all the localities aforesaid, and in connection with other telegraph or telephone line or lines within the state of New Jersey, and also to purchase, control, lease, let, or use and subgrant all patents and licenses and rights now or hereafter existing, for the purposes of the business hereinbefore set out. The petition then sets out the description of the line of telegraph or telephone, and the localities it is intended to traverse. It is to consist of such poles, with cross-arms, fixtures, and appliances as maybe necessary to sustain such wires, cables, or other electrical conductors as may be required for the purpose of conducting a telegraph or telephone business, or both. It then describes the part of the road, running over the land of the prosecutor, upon which the poles are to be placed, and sets out that a map or diagram is presented with the petition, showing the situation of the road in relation to the land of prosecutor, the intended location of each post or pole, the distance between each post or pole. The petition then sets out the size of the poles, the maximum distance from the ground to the point where wires are to be attached to the poles. The petition, with the map, was filed, and, upon regular notice given, commissioners were appointed.

Argued November term, before Knapp and Reed, JJ.

Alfred Mills and Mahlon Pitney, for prosecutors.

Theodore Little and Melville Egleston for defendants.

REED, J., (after stating the facts as above.) The radical objection raised against the order in question is that the Central New Jersey Telephone Company has not the power to condemn lands. The range of the objection is either that this company has no corporate existence, or, if it has, it has no authority to condemn lands for other than telegraphic uses. It is argued that this is an attempt to condemn for a use foreign to the corporate business. To attain a clear view of the foundation upon which the argument leading up to this alleged conclusion rests, it is essential that the legislation relating to telegraph and telephone companies should be passed in review. The original act entitled "An act to incorporate telegraph companies," passed in 1853, another act entitled "An act relating to telegraph companies," passed in 1855, and a supplement to the firstmentioned act, which supplement was passed in 1866, were revised and consolidated in 1875 in an act entitled "An act to incorporate and regulate telegraph companies." Revision, p. 1174. This act provides for a subscription of one-third of the capital stock necessary to be issued for the construction of aline of telegraph; for depositing with the secretary of state a description of the line and the localities which it is intended to traverse, the capital of the company, its corporate name. It provides that upon compliance with these conditions they shall become a body corporate. The act contains directions for organization, and other matters not material to the question in this case. In 1880 (Supp. Revision, p. 1022) a supplement to this act was passed. It provides that any telegraph or telephone company organized by virtue of the act last mentioned, or by virtue of any special act, may apply to the common councils * * * for a designation of streets through which poles may be placed. It further provided for a condemnation of a right of way by such companies. Then follows a supplement in 1882, (Supp. Revision, p. 1023,) which provides that any telegraph company incorporated under the telegraph act may construct its line by means of underground cables containing wires. Then follows a supplement in 1887, (P. L. p. 119,) which provides that when any telegraph or telephone company organized under the telegraph act or any special act shall make an application to certain legislative bodies of municipalities to designate a route through the streets, it shall be the duty of such legislative body to make such designation in writing. Then follows a supplement in 1888, (P. L. p. 546,) which provides that a circuit judge may in certain cases make such designation of streets upon a petition filed by such telegraph or telephone company. The final supplement to the telegraph act is that of 1890, (P. L. 489.) The first section of this act provides a detailed scheme for condemnation of routes along roads by any telegraph or telephone company. The second section declares that the provisions of the act to incorporate and regulate telegraph companies, and its supplements, shall extend to all telephone companies heretofore organized under that act. From a glance at the last supplement set out it is apparent that the last section of that act, if valid, contains a plenary grant of power to condemn. It confers, in explicit terms, upon all telephone companies organized under the telegraph act, the same power of condemnation possessed by a telegraph company incorporated under that statute. This section is attacked upon the ground that it is a palpable infringement of the first subdivision of paragraph 4, § 7, art. 4, of the amended constitution.

It is urged that the legislation contained in the second section is concerning a subject foreign to the title of the act; that it is an attempt to amend the telegraph act by reference to its title only, and by providing that the provisions of the telegraph act shall be a part of the section, without setting out in full the statute as amended. I do not regard the settlement of the constitutional question thus mooted essential to a decision of this cause. I am of the opinion that the right to condemn set in motion by the petition and order brought up can be vindicated by an appeal to other legislation. I think that a telephone company can be incorporated under the original revised act to incorporate and regulate telegraph companies. To state the proposition in another way, I think that the operation of a line of wire for a telephonic service by a company organized under this act is not ultra vires. If this be so, then a condemnation for a telephone line is within the power granted in the act. The telegraph act does not define the kind of business in which the corporation shall engage, apart from the provision the corporators shall subscribe stock for the construction of a telegraph line. The name of such corporation need not indicate the business proposed to be transacted. Any title can be adopted. The only limitation upon the scope of the business is that it must be within that for which a line of telegraph, in performing its public...