Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1899-06-11
THE R1CHMoNp MISREPRESENTATION. JUNE IL 1893


the legislation. When the law. was made,
the electric telegraph, as distinguished
from the older forms, was what the Jaw
makers had in view. The electric teie-
graph. when the law was made. az 70
the general public. transmitted only
written communications. Its mode OF
conduct IL yet substantially the same.
This transmission of written messages
is closely analogous TO the United States
mail service Hence the acceptance OF
the provisions of the law by the tele-
graph company was required TO be flled
with the Postmaster-General, who mas
charge of the mail service. Under the
several sections embraced In the lltle,
in consideration of the right OF way and
the grant of the right 10 pre-empt forty
acres of land for stations at intervals OF
not less than fifteen miles, certain priVi-
leges as to priority OF right over the line.
also the right to purchase, with power
TO annually fix the rate or compensation,
were secured TO the government. Gov
eminent communications TO all distant
points are almost all, lt not an, III Wftlhg'
The useful government privileges when
formed an important element In the legls-
lation would be entirely nappicdD4e TO
telephone lines, by Wnicn ofal cVIiInuhl-
cations only are transmitted pur-
chase OF q telephone line certainly was
not in the mind of the lawmakers. in
common and technical language aiNe,
telegraphy and telephony nave ditSrehs
sisnifcations Neither includes all OF
the other The science Of telephony, as
now understood. was little known as TO
practical utility in 1866, wren inc graz
part OF the law contained IN the illle
was passed Telephone companies, lltIt-
fore are not within the category OF the
grantees OF the privileges conferred py
the statute If similar privileges oIPn1
TO be granted 10 telephone coInpdH!So'
such 2 grant would come Withln the
scope OF Legislative rather than ADMINS
trative power" 10 Opln., ~.
NOT JUDICIARY FUNCTION.
1t is not the function Of the judiciary.
because OF discoveries after the act
of 1865, to broaden the provisions Oh
that act so that it will include corpora
tons or companies that were not, auu
could not have been at the tmS' Wl'hlh
the contemplation Of Congress. III the Act
De construed as embracing telephone com
panies. numerous questions are Teddily
suggested May telephone company, Vt
right and without reference 10 me WI
Of the States, construct and MAINTAIN us
wires in every city IN Inc Vs'l'oIS d"
which It does business? May the consul
.uted authorities Of a city permit the &C
cupancy only Of certain streets Tor tne
business OF the company May the com
pany. OF right III every street ana aliey
in every city or town In the country WIN
p0les on which its wires are strung, OF
may the local authorities forbid the cree
lion of any poles at all? May company
run wires into every house IN a city as
the owner or occupant may desire, or NAY
the local authorities limit the number OF
wires that may be constructed ana usea
within It's limits2 These and otnor Ques-
lions that will occur TO every one nui-
cate the confusion that may aIlsc II lls
act Of Congress, relating only 10 teie-
graph companies. be so cohsl ueu as -
subject 10 national control the use ana
occupancy OF me streets OF cities anu
towns by telephone companies. subject
only 10 the reasonable exercise OF tlt PV-
lice powers of the state. But even W ~
were conceded that no sucD conIu7i Il
vould probably arise it ia clear mat INC
courts should not construe am act Oh CyH-
0ress relating in terms Only 10 .c.
graph" companies as inten"eu 10 CVt'lCa
upon companies engaged III ,eicpl',.o
business amy special rights IN the sIgcla
NJ cities and towns Of the country uhitSs
such Intention has been clearly Hlanl-
tested. We DO not think that any SuOii ~ ~
fentfOn has been so mamie lGu' tlC
conclusion that the act or ltuO COMES
mon telouhOne companies the Nalu1p.e
rights and privileges therein apeclhed la
not authorized by any eNpAc.t lturuoeSy
lseG by Congress. and can De !uo utleu
by Implication only. BUT We are INV L..',,l2
In resi- the construction or an lmpoFt1ul
act of Congress upon implication mercy,
if that construction IhIshC
lend to narrow the full conlrol always
sXercised by the local authorities Oh lne
ctates over streets and alleys WITHIN tnglf !
~esuectivc Jurisdictions. If Congress de- ,
sires to extend the provisions OF the aCI
~ 1S66 ia companies engaged in the busl- ,
ness of electrically transmitting drucu-
ate speech-tnat is. TO companies popl-
arly known as te'ephone companies. ana
never otherwise designated IN common |
sDeech-let it do so i'm plain WORDS. IL |
gill be time enough when such leslsid- |
ION is enacted 10 consider any questions
n constitutional law that may be suB- |
yested by IL. 80 |
Something was said in argument rs 10 /
he uower Of Congress TO control the use |
If streets in the towns and cities OF the |
country. Upon that question IT Il NOT he-
..ssarv 10 express any opinion We now
,diudga ONLY that the act Of 1866. ana the
'octions of the Revised Statutes I'm Which
he provisions Of that act have been pre-
erved nave no application TO telephone |
whose business IS inaJ OF |
Electrically transmitting articulate speech
,ctween different points.
What rights the appellee had, or mas
,nder The laws of Virginia and the ordl- !
IaDccs Of the city of Richmond. rs n
uestion which the Circuit Court ana not
ecide but expressly waived II rs appIo-
riate that that question should frst De
onsldered and determined by the court |
f original jurisdiction.
The decree of the Circuit court or APP !
.eaIs so far as il reVerscs the decree or |
he Circuit Court is affirmed and the
ause is remandod with direcuon3 Tor
uch further proceedings in the Circuit
,rurt as may be i'm conformity with lne J
rinciples of this opinion and consistent
With law.
10 Is so ordered.
True copy-Test:
JAMES f. MKENNEY.
Clerk Supreme Court United states.