The herald., 1894-10-02
HEARD ON THE MERITS.
THE POSTAL TELEGRAPH COMPA-
NY'S APPLICATION.
Elaborate Arguments Made by Judge W.
FL. Wilde and Mr.. ii. ID. Estor-
brook-The Western Union
Contract Contest

Judge E. NJ. Ross, in the United States
circuit court, gave hearing yesterday
on the petition by the Postal Telegraph
Gable company to direct the recsivera OF
the Atlantic and Pacific Railroad COM
pany to allow it to construct its tele
graph line along the right of way Of the
railroad company.
This is now the only remaining gap in
the way of connection between the
Pacific coast telegraph lines and the
Postal Telegraph Gable company OF the
east, and there is determined effort
between the Western Union company
and its rival over the petition.
The hearing took up the entire day
and resulted in number of very able
arguments by the various attorneys
pr resent. 1t will be remembered that a
few days ago Judge Ross. in a carefully
prepared opinion, allowed the petition
ers to file petition in intervention and
the attorneys for the Western Union
telegraph company to come in.
Yesterday morning Mr.. ii. ID. Eater
brook of Omaha, attorney for the West
Postal oompany's petition, which, after
arguments, was overruled by Judge
Rose.
superintendent Muir and Train Dis
patcher Hamilton were called as wit
nesses and gave testimony as to the ad-
vantage which telegraph lines along a
railroad are to the railroads.
Mr.. Baker, superintendent OF con-
struction of the Postal company, testi-
fed as to the custom OF railroads to de-
liver materials along its line.
After the overruling OF the demurrer
Mr.. Esterbrook presented and read ths
answer of the Western Union Telegraph
company to the petition of the Postal
Telegraph company. He announced that
he had no testimony to introduce.
Then" said w. H. Wilde, of counsel
for the Postal company, I'VE consider
that there is only one question before
the court. The receivers OF the Atlantic
and Pacific Railroad company have said
that they would be glad to grant our re-
quest, as il would be an advantage to
the railroad, both on account OF the
compensation it would receive for the
services rendered and would be an ad-
ditional telegraph line along the road.
"rhsy say that they would be glad to
grant the facilities we ask, but base
their refusal on the contract between
the Western Union and the railroad
which binds them to give such facilities
to no other telegraph company. The
question we say before the court is. does
this contract interfere? We submit
that it is absolutely void and sgainet
public policy"
Judge Ross-Isn't there q question
beyond that. Are these facilities with
in or beyond the scope of the duties of
railroad as common carrier?
Mr.. Wilde and Mr.. Lamme thought
they were within such scope.
Mr.. Esterbrook said that he wished
to be clearly understood that he con-
ceded that if the contract deprived the
Postal com pany OF any legel right that
would settle il. The court had settled
that the Postal was ad mitted to right
of way. The only other question was
what his people had the right to with
hold.
Mr.. Wilde again insisted that the re.
ceivers say they are deferred only by
the contract from granting the facilities
requested. The counsel set up the con-
was absolutely void.
"Will you admit the contract is
void ?" asked Mr.. Wilde.
81 should hope not replied Mr.. Es-
Textbook. with emphasis.
Mr.. Wilde then proceeded with quite
en- elaborate argument directed against
the validity OF the contract, quoting
copiously from decisions by various
United States courts, contending that
an exclusive contract such as the one
contained in the present one, was
against public policy and beyond the
powers of the railroad to make.
He was followed by Mr.. Esterbrook,
who reviewed hs authorities. and
claimed that the clause objected to was
not illegal. that it expressly stated that
it only made such reservations OF an ex-
elusive nature as would be legal.
The hearing was not concluded when
court adjourned for the day.
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