The San Francisco call., 1898-02-13

VI Sile luln or september, l6So, so Iaf man; ni;alhtalning and using it's lines, poles and the it over and along the streets and alleys of ing ing and extending it's said poles, wires. lines he daoIes nJIutes as It's business may require, may
 NiaTeu null and void.
 THE DEMURRER.
 pon the filing of the bill an interlocu- 'o1H injunction was granted.
 ,,,1 ne Dill was first met by demurrer. me demurrer set up these defenses:
 Asa AS to the equity of the bill: ,o.. ,,.. only to telegraph companies and not to com panies sS like the complainant.
 mat the act of Congress, even 1T It does eppIy 10 complainant, does not give 1t any fight to erect its poles and wires along the streets Of Richmond without the consent of the Citly subject to reasonable regulations as to lhe routes position and number of the poles and to pay for the use of the street.
 ~ l. That if this is the effect of the act Of congress IL is unconstitutional
 D. That the ordinance of 1884 constitutes binding contract between complainant and the city of Richmond, with power of rescission was given by the statute of the State of Vir- ginia and was properly exercised
 The demurrer was overruled and the defendant filed it's answer.
 The portions of this answer which bear upon the conclusions reached in this case are these: A denial that the wires, poies and lines of the complainant in and over the streets and alleys of said city con sttute a part of the postal service Of the United States A denial that complainant IS telegraph company and a denial that that It's acceptance of. the act or lSoo, so far as the telephone exchange In Richmond is concerned. even en- titled 1t to any of the rights and pow CTS authorized by the act A denial that the acceptance by the complainant of the provisions of the act of 1866 has rendered complainant independent Of and superior to the Council of the city of Richmond.
 The cause came to a full hearing ana he fnlln hp cree:
 The court, without passing on the rights claimed by the complainant company under the laws of Virginia, and the ordinances or the city of Richmond, Is of opinion and doth ad- judge, order and decree that the complainant company has, in accordance with the terms act of Congress of the United States, approved July e4, 1866 (which Is an authority paramount and superior to any State law or city ordinance in conflict therewith), the rights to construct, maintain and operate its lines over and along the streets and alleys of the city of Richmond, both those now occupied by the complainant company and those not now so occupied. and to put up, renew, replace and repair its lines. poles and wires over and along said streets and alleys, well to maintain, construct and operate the same and to connect its lines with new subscribers along said streets and alleys, and the said city of Richmond. it's agents, officers and all others are enjoined and restrained from cutting, removing or in any way injuring said lines, poles and wires of the complainant company, and from preventing or interfering with the exercise of the aforesaid rights by the complainant company, and also from taking proceedings to infiict and enforce fines and penalties on said company for exer- cising its said rights.
 ASSIGNMENT OF ERROR.
 The defendant obtained leave to appeal from this decree and it comes up on the assignments of error. These are eleven in number. The first three are general in their character, going to the preliminary injunction and to the demurrer to the bill
 The fourth is to the effect that the or d1nance of 1884, passed under the author ity Of the State of Virginia and under which the operations of the complainant company were begun and continued, ere ated contract which bound the com plainant to cease its operations upon the streets and alleys of Richmond whenever the City Council exercised it's right to re- peal said ordinance, a right reserved in the ordinance itself.
 The fifth and sixth deny that the com plainant has any right to the privileges under the act of Congress of 1S66 which applies to telegraph companies, and not to telephone company, as complainant is.
 The seventh. eighth and ninth deny that even If complainant comes within the act of 1866, it can be protected, unless it is engaged in interstate commerce business; and only as to such business, and denies that it is protected in it's local business They also deny that there is anything in the contract with the Western Union Telegraph Company which puts com plainant in interstate commerce business or within the protection of section S. ar States.
 The tenth and eleventh assignments as- sign error as to the scope of the iniunc- uon, as 1t enjoins the city from interfer- ing with the mira State and local busi- ness of the complainant and a right to erect its poles and stretch it's wires with out any control on the part of the city. At the bar the appellant declared that the consututionality of the act of Con- gress or 1866 was recognized and admitted
 That all streets which are letter carrier routes are post roads of the United States.
 That under the act of 1866 a telegraph company can obtain right of way for its poles and wires through city and along its streets against the wish of the mu-
 The decisive questions raised in this case are:
 First-Does the complainant come within the protection and is 1t entitled to the privileges contained in the act of Congress of 1866?
 Second-If it comes within the provisions of that that act how far has 1t limited and restricted nance of the city of Richmond?
 Third-To what extent does the protection of the act of 1866 go? Does it make the company pality In which its does business?
 The act of Congress of 1866, in terms. speaks Of telegraph companies. Do these words include telephone companies?
 The telegraph and telephone both com municate messages by means of electricity over wires for longer or shorter distances The telegraph communicates these mes sages by sound of instruments, the tele- phone by the human voice usually Both depend upon electricity for their action Each Is but a form of uSe-the product and the result of the same principle The names are only used to distinguish the method of communication.
 SOME CITATIONS.
 In England, in the case of Attorney General vs. Edison Telephone Company Q. B. Div, PA Stephens, J., in a care fully prepared and elaborate discussion says; 'I do not think it necessary to express any opinion on a controversy which is more scientific than legal and perhaps more properly metaphysical or relative to the meaning of words than scientific, as it seems to turn upon the nature of identity in relation to sound It Is enough to say that, whatever be the merits of the controversy, it does not ap- pear to us that the fact, if it is a fact that sound itself is transmitted by the telephone, establishes any material dis tinction between telephonic and tele- graphic communication, as the transmits sion, if it takes place, is performed by a wire acted on by electricity"
 In the Wisconsin Telephone Company vs. City of Oshkosh, 62 Wis, 32, this case was cited with full approval, and the doctrine asserted that, in contemplation of law, a telephone and telegraph com pany are one and the same. In the case of the Chesapeake and Potomac Tele-