ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Beach, §§ 3-6; Clark, p. 39, et seq.; Cook, § 1001; Elliott, § 28; Field, § 13; 1 Morawetz, § 9; Taylor, § 467; 1 Thompson, §§ 665-685.

1. In the District of Columbia: Chapter 15 of the Compiled Statutes of the District of Columbia relates to the formation of corporations within the District. The following are provided for: Institutions of learning, religious societies, benevolent, educational, etc., societies, manufacturing, agricultural, mining, mechanical, insurance, transportation, market, savings banks, cemetery associations, boards of trade, trust companies, insurance and vestries. This is under the constitutional provision giving congress exclusive legislative authority within the District. Art. i, § 8, cl. 17.

Such corporations may act in the states by their consent and that of congress. Hadley v. Freedman's Trust Co., 2 Tenn. Ch. 122; Williams v. Creswell, 51 Miss. 817. Congress has authorized a District insurance company to do business in the states, with their consent, 15 St. at L. 184; also authorizes National Trades' Unions with power to establish branches in the states, 1 Supp. R. S. 498 (1886). The Freedman's Saving & Trust Co. was authorized by 13 St. at L. 510; National Asylum for Disabled Volunteers, 14 St. at L. 10; Centennial Board of Finance, 17 St. at L. 203. Societies for benevolent purposes, R. S. §§ 546; 1 Supp. R. S. 425.

2. In the Territories: Congress has general legislative authority over the territories, and can, therefore, create corporations within the territories, or authorize the territorial legislatures to create corporations. It has provided for the territorial legislatures to do so by a general act. U. S. Const., art. iv, §3, cl. 2; Rev. Stat., § 1889, infra, p. 332.

3. In the States: Substantially all the authorities upon this point are cited in the Luxton case. The U. S. bank was chartered in 1791, by 1 St. at L. 191, and in 1816, 3 St. at L. 266; the present national banking system was established in 1863 by 12 St. at L. 665; the Union Pacific Ry. in 1862, 12 St. at L. 489; Northern Pacific Ry., 1864, 13 St. at L. 365; Atlantic and Pacific Ry., 1866, 14 St. at L. 292; Texas and Pacific Ry. in 1871, 16 St. at L. 573, and 1872, 17 St. at L. 59. Sections 5263-5269, Revised Statutes, authorize state incorporated telegraph companies to construct their lines on all post roads. See Pensacola Tel. Co. v. W. U. Tel. Co., 96 U. S. 1, infra, p. 326.

Such a corporation is not a foreign corporation within any state. 1881, Commonwealth v. Texas, etc., R., 98 Pa. St. 90; 1882, Market National Bank v. Pacific, etc., Bank, 64 How. Pr. (N. Y.) 1; 1879, Eby v. Northern Pac. Ry. Co., 36 Leg. Int. 164, s. c. 6 Weekly N. C. 385.

Such corporation may exercise the power of eminent domain within the states. 1875, Kohl v. United States, 91 U. S. 367; 1890, Searl v. Dist. No. 2, 133 U. S. 553; 1890, Cherokee Nation v. R. Co., 135 U. S. 641; 1890, Ryan v. U. S., 136 U. S. 69; 1892, Bellaire v. R. Co., 146 U. S. 117.

Such corporation is exempt from state taxation or control, so far as the same might impair its efficiency as an instrument of the national government. 1869, National Bank v. Commw., 9 Wall. (U. S.) 353; 1869, Thomson v. Pacific R. R., 9 Wall. (U. S.) 579; 1873, Railroad Co. v. Peniston, 18 Wall. (U. S.) 5. But state taxation of national banks is provided for by U. S. Rev. Stats., § 5219.

A national corporation has a right to sue and be sued in the United States courts. 1897, Texas, etc., R. v. Cody, 166 U. S. 606; infra, p. 1098.

4. To operate outside of the territory of the United States: In 1889 congress chartered the Maritime Canal Company of Nicaraugua (25 St. at L. 673). The company also has a charter from the state of Vermont. Beach Corp., § 6, n. 2, p. 10.

5. Dissolution: The constitutional provision (art. i, § 10, cl. 1) forbidding the states from passing any law impairing the obligation of contracts, does not apply to congress. Hence, congress may repeal a corporate charter created by itself or the territorial legislatures, prior to the territory becoming a state. 1890, Corporation of Church of Jesus Christ, etc., v. United States, 136 U. S. 1, infra, p. 906. But see 1878, United States v. Union Pacific Railroad Co., 98 Ú. S. 569, and 1878, The Sinking Fund Cases, 99 U. S. 700. But in the early bank charters, the creating congress pledged the faith of the

government not to repeal the charter before the charter period elapsed. See 1 St. at L. 191; 3 St. at L. 266.

Sec. 66. (2) On state legislatures.

PENSACOLA TELEGRAPH COMPANY v. WESTERN UNION TELEGRAPH COMPANY.1

1877.

IN THE SUPREME Court of the United STATES. 96 U. S.
Reports 1-24.

Appealed from the circuit court of the United States for the northern district of Florida.

In 1859 an association of persons, known as the Pensacola Telegraph Company, erected a line of electric telegraph upon the right of way of the Alabama and Florida Railroad from Pensacola, in Florida, to Pollard, in Alabama, about six miles north of the Florida line. The company operated the whole line until 1862, when, upon the evacuation of Pensacola by the confederate forces, the wire was taken down for twenty-three miles, and Cooper's Station made the southern terminus. In 1864 the whole was abandoned, as the section of the country in which it was situated had fallen into the possession of the United States troops.

On the 1st of December, 1865, the stockholders met, and it appearing that the assets of the company were insufficient to rebuild the line, a new association was formed for that purpose, with the old name, and new stock to the amount of $5,000 subscribed. A resolution was adopted by the new company to purchase the property of the old, at a valuation put upon it in a report submitted to the meeting, and a new board of directors was elected.

A meeting of the directors was held on the 2d of January, 1866, at which the president reported the completion of the line to Pensacola, and a resolution was adopted, authorizing the purchase of wire for its extension to the navy yard. The attorneys of the company were also instructed to prepare a draft for a charter, to be presented to the legislature for enactment.

On the 24th day of July, 1866, congress passed the following act: "An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military and other purposes.

"Be it enacted by the senate and the house of representatives of the United States of America in congress assembled, That any telegraph company now organized, or which may hereafter be organized, under the laws of any state in this Union, shall have the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States over and along any of the military or post roads of the United States which have been or may be hereafter declared such by act of congress, and over, under or across the navigable streams or waters of the United States: Provided, That such lines of telegraph shall be so constructed and maintained as not 1 Arguments and dissenting opinions of Justice Field and Hunt omitted.

to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber and other materials for its posts, piers, stations and other needful uses in the construction, maintenance and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.

"Sec. 2. And be it further enacted, That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the postmastergeneral.

"Sec. 3. And be it further enacted, That the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association or person: Provided, however, That the United States may at any time after the expiration of five years from the date of the passage of this act, for postal, military or other purposes, purchase all the telegraph lines, property and effects of any or all of said companies at an appraised value, to be ascertained by five competent disinterested persons, two of whom shall be selected by the postmaster-general of the United States, two by the company interested, and one by the four so previously selected.

"Sec. 4. And be it further enacted, That, before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the postmaster-general of the restrictions and obligation required by this act. 14 Stat. 221; Rev. Stat., § 5263, et seq.

All railroads in the United States are by law post roads. Rev. Stat., § 3964; 17 Stat. 308, § 201.

On the 11th of December, 1866, the legislature of Florida passed an act incorporating the Pensacola Telegraph Company, and granting it "the sole and exclusive privilege and right of establishing and maintaining lines of electric telegraph in the counties of Escambia and Santa Rosa, either from different points within said counties, or connecting with lines coming into said counties, or either of them, from any point in this (Florida) or any other state." The capital stock was fixed at $5,000, with privilege of increasing it to such an amount as might be considered necessary. The company was authorized to locate and construct its lines within the counties named, "along and upon any public road or highway or across any water, or upon any railroad or private property for which permission shall first. have been obtained from the proprietors thereof." In this act all the stockholders of the new association which had rebuilt the line were named as corporators. No meeting of the directors was held until January 2, 1868, when the secretary was instructed to notify the

stockholders "that the charter drawn up by Messrs. Campbell & Perry, attorneys, as per order of board, January 2, 1866," had been passed.

On the 5th of June, 1867, the directors of the defendant, the Western Union Telegraph Company, a New York corporation, passed the following resolution, which was duly filed with the postmastergeneral:

"Resolved, That this company does hereby accept the provisions of the act of congress, entitled 'An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military and other purposes,' approved July 24, 1866, with all the powers, privileges, restrictions, and obligations conferred and required thereby; and that the secretary be, and he is hereby authorized and directed to file this resolution with the postmaster-general of the United States, duly attested by the signature of the acting president of the company and the seal of the corporation, in compliance with the fourth section of said act of congress.

In 1872 the property of the Alabama and Florida Railroad Company, including its right of way and railroad, was transferred to the Pensacola and Louisville Railroad Company; and on the 14th of February, 1873, the legislature of Florida passed an act, which, as amended February 18, 1874, authorized the last named company "to construct, maintain and operate a telegraph line from the Bay of Pensacola along the line of the said (its) road as now located, or as it may hereafter be located, and along connecting roads in said county to the boundary lines of the state of Alabama, and the said lines may connect and be consolidated with other telegraph companies within or without the state, and said company may pledge, mortgage, lease, sell, assign and convey the property appertaining to the said telegraph lines, and the rights, privileges and franchises conferred by this act, with full power in such assignees to construct, own and operate such telegraph lines, and enjoy all the privileges, rights and franchises conferred by this act, but in such case the said railroad company shall be responsible for the proper performance of the duties and obligations imposed by this act.

[ocr errors]

This was within the territory embraced by the exclusive grant to the Pensacola Telegraph Company.

On the 24th of June, 1874, the Pensacola and Louisville Railroad Company granted to the Western Union Telegraph Company the right to erect a telegraph line upon its right of way, and also the rights and privileges conferred by the acts of February, 1873 and 1874. The Western Union Company immediately commenced the erection. of the line, but before its completion, to wit, July 27, 1874, the bill in this case was filed by the Pensacola Telegraph Company to enjoin the work and the use of the line, on account of the alleged exclusive right of that company under its charter. Upon the hearing, a decree was passed dismissing the bill, and this appeal was taken.

Mr. Chief Justice WAITE delivered the opinion of the court. Congress has power to regulate commerce with foreign nations and among the several states" (Const., art. i, § 8, par. 3), and "to

establish post-offices and post reads." (Const., art. i, § 8, par. 7.) The constitution of the United States and the laws made in pursuance thereof are the supreme law of the land. Art. vi, par. 2. A law of congress made in pursuance of the constitution suspends or overrides all state statutes with which it is in conflict.

Since the case of Gibbons v. Ogden (9 Wheat. 1), it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of congress. Post-offices and post roads are established to facilitate the transmission of intelligence. Both commerce and the postal service are placed within the power of congress, because, being national in their operation, they should be under the protecting care of the national government.

The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended. for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of congress to see to it that intercourse among the states and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation.

The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the habits of business, and become one of the necessities of commerce. It is indispensable as a means of inter-communication, but especially is it so in commercial transactions. The statistics of the business before the recent reduction in rates show that more than eighty per cent. of all the messages sent by telegraph related to commerce. Goods are sold and money paid upon telegraphic orders. Contracts are made by telegraphic correspondence, cargoes secured, and the movements of ships directed. The telegraphic announcement of the markets abroad regulates prices at home, and a prudent merchant rarely enters upon an important transaction without using the telegraph freely to secure information.

It is not only important to the people, but to the government. By means of it the heads of the departments in Washington are kept in close communication with all their various agencies at home and abroad, and can know at almost any hour, by inquiry, what is transpiring anywhere that affects the interests they have in charge. Under such circumstances, it can not for a moment be doubted that this powerful agency of commerce and inter-communication comes within the controlling power of congress, certainly as against hostile state legislation. In fact, from the beginning, it seems to have been assumed

« ÀÌÀü°è¼Ó »