VIII. Chapter poles on which its wires are strung, or may the local authorities forbid the erection of any poles at all? May a company run wires into every house in a city, as the owner or occupant may desire, or may the local authorities limit the number of wires that may be constructed and used within its limits? These and other questions that will occur to every one indicate the confusion that may arise if the Act of Congress, relating only to telegraph companies, be so construed as to subject to national control the use and occupancy of the streets of cities and towns by telephone companies, subject only to the reasonable exercise of the police powers of the State. If Congress desires to extend the provisions of the Act of 1866 to companies engaged in the business of electrically transmitting articulate speech that is, to companies popularly known as telephone companies, and never otherwise designated in common speech let it do so in plain words. It will be time enough when such legislation is enacted to consider any questions of constitutional law that may be suggested by it." Telegraph companies to construct lines over post roads, etc. By the Act of Congress of July 24, 1866,5 teleauthorized graph companies were authorized under certain conditions to construct, maintain, and operate lines of telegraph over the public domain and along any military or post roads of the United States. In Pensacola Tel. Co. v. Western Union Tel. Co., it was held that the statute was constitutional so far as it declared the erection of telegraph wires to be, as against State interference, free to all who 6 Act of July 24, 1866, c. 230, brought forward into the Revised Statutes of the United States, §§ 5263 et seq., 7 Fed. Stat. Annot. 205. 6 (1877) 96 U. S. 1. VIII. Grant by exclusive State of franchise. accepted its terms and conditions, and that a tele- Chapter graph company of one State accepting them could not be excluded by another State from prosecuting its business within her jurisdiction. In this case a State statute had conferred upon a single corporation the exclusive right of transmitting intelligence by telegraph from a certain portion of its territory, and it was held to be an attempt to regulate commerce, and to conflict with the above Act of Congress.7 POWER OF STATES TO ADOPT REGULATIONS. The States may adopt regulations affecting telegraph companies, when such regulations are on matters of local concern, and unless their operation impairs the ability of the companies to attend to their interstate and foreign business. Under the police power, a State may make all necessary provisions with respect to the buildings, poles, and wires of telegraph companies in its jurisdiction which the comfort and convenience of the community may 7 See also Western Union Tel. Co. v. Pennsylvania R. Co., (1904) 195 U. S. 540; Leloup v. Mobile, (1888) 127 U. S. 640; Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347; Western Union Tel. Co. v. Atlantic, etc., Tel. Co., (1869) 5 Nev. 102. 8 A State may require offices to be established at places convenient to routes to be designated by the State Railroad Commission. Western Union Tel. Co. v. Mississippi R. Commission, (1896) 74 Miss. 80. A statute declaring a stipulation in a contract for the transmission of a message to be invalid which required notice of a claim for damages against a telegraph company to be given within sixty days after breach of the contract, is void, so far as it applies to messages sent into, and received from, another State. Western Union Tel. Co. v. Burgess, (Tex. Civ. App. 1897) 43 S. W. Rep. 1033. Gambling operations by means of telegraphic communications may be prohibited. State v. Harbourne, (1898) 70 Conn. 484; Louisville v. Wehmhoff, (1903) 116 Ky. 845. Matters of cern. local con VIII. Chapter require," and a State or the local authority may require the removal of poles and wires from a street to a less frequented alley,' and may require electric wires and cables to be placed under the surface of the streets.2 Requiring prompt delivery within the State. Regulating Transmission and Delivery of Messages. 66 A State statute which requires telegraph companies diligently to transmit and deliver messages is a valid exercise of power in relation to messages by telegraph from points outside and directed to some point within the State. Such a statute imposes a penalty," said Mr. Justice Peckham, in Western Union Tel. Co. v. James,3" for the purpose of enforcing this general duty of the company. The direction that the delivery of the message shall be made with impartiality and in good faith and with due diligence is not an addition to the duty which it would owe in the absence of such a statRegulating ute. But a statute requiring telegrams to be delivered by messenger to the persons to whom they are addressed, if they reside within one mile of the telegraph station or within the city or town within which such station is, and which applies when the delivery is to be made in another State, is not within the power of a State, as conflict and confusion would follow the attempted exercise by sev delivery in other States. 994 See infra, p. 301. 1 Michigan Telephone Co. v. Charlotte, (1899) 93 Fed. Rep. 11. 2 Western Union Tel. Co. v. New York, (1889) 38 Fed. Rep. 552. 3 (1896) 162 U. S. 650, affirming (1892) 90 Ga. 254. See also Western Union Tel. Co. v. Lark, (1895) 95 Ga. 806. A statute imposing a penalty for delay may be enforced in the case of a message between points in the same State passing en route out of the State. Western Union Tel. Co. v. Hughes, (1905) 104 Va. 240. VIII. eral States of such a power; 5 though State courts Chapter have held statutes to be valid which impose penalties for failure to transmit messages intended for Penalizing other States when the acts of negligence occur within the State, as where there is a failure to transmit the message from the point of origin. negligence within the State. order of A State cannot provide that messages for and Regulating from officers of justice shall take precedence, or transmisthat arrangements may be made with publishers of newspapers for the transmission of intelligence of general and public interest out of its order, but that all other messages shall be transmitted in the order in which they are received. An attempt, by penal statutes, to enforce delivery of such messages in other States, in conformity with such a rule, could hardly fail to lead to confusion with their statutes.s 5 Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347. • Western Union Tel. Co. v. Howell, (1894) 95 Ga. 194. Western Union Tel. Co. v. Meredith, (1883) 95 Ind. 93. 7 Postal Tel. Cable Co. v. Umstadter, (1905) 103 Va. 742. 8 Western Union Tel. Co. v. Pendleton, (1887) 122 U. S. 347. 13 See Chapter Not limited to tidal waters. When navigable in fact. CHAPTER IX. NAVIGATION AND NAVIGABLE WATERS. THE WHAT ARE NAVIGABLE WATERS. HE common-law test of navigability, as held by the English admiralty courts, that waters are navigable which are subject to the ebb and flow of the tide, has long since been discarded in this country in favor of the more liberal principles of the civil law, equally with the common law embraced by the Constitution, as being more suited to the conditions of this country, with its vast extent and its inland seas, bays, and rivers.1 When Congress legislates respecting the "navigable waters of the United States," it is now understood that such streams are meant as are navigable in fact, and which by themselves or their connection with other waters or means of transportation form a continuous channel for commerce of a substantial and permanent character among the States or with foreign countries. They are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel by water.2 But it cannot be supposed, in 1 Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678; Nelson v. Leland, (1859) 22 How. (U. S.) 48. 2 Miller v. New York, (1883) 109 U. S. 385; Escanaba, etc., Transp. Co. v. Chicago, (1882) 107 U. S. 678; The Daniel Ball, |