that congress might aid in developing the system, for the first telegraph line of any considerable extent ever erected was built between Washington and Baltimore, only a little more than thirty years ago, with money appropriated by congress for that purpose (5 Stat. 618), and large donations of land and money have since been made to aid in the construction of other lines. (12 Stat. 489, 772; 13 Stat. 365; 14 Stat. 292.) It is not necessary now to inquire whether congress may assume the telegraph as part of the postal service, and exclude all others from its use. The present case is satisfied, if we find that congress has power, by appropriate legislation, to prevent the states from placing obstructions in the way of its usefulness.

The government of the United States within the scope of its powers operates upon every foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by state lines. Its peculiar duty is to protect one part of the country from encroachments by another upon the national rights which belong to all.

The state of Florida has attempted to confer upon a single corporation the exclusive right of transmitting intelligence by telegraph over a certain portion of its territory. This embraces the two western most counties of the state, and extends from Alabama to the Gulf. No telegraph line can cross the state from east to west, or from north to south, within these counties, except it passes over this territory. Within it is situated an important seaport at which business centers, and with which those engaged in commercial pursuits have occasion more or less to communicate. The United States have there also the necessary machinery of the national government. They have a navyyard, forts, custom-houses, courts, post-offices, and the appropriate officers for the enforcement of the laws. The legislation of Florida, if sustained, excludes all commercial intercourse by telegraph between the citizens of the other states and those residing upon this territory, except by the employment of this corporation. The United States can not communicate with their own officers by telegraph except in the same way. The state, therefore, clearly has attempted to regulate commercial intercourse between its citizens and those of other states, and to control the transmission of all telegraphic correspondence within its own jurisdiction.

It is unnecessary to decide how far this might have been done if congress had not acted upon the same subject, for it has acted. The statute of July 24, 1866, in effect, amounts to a prohibition of all state monopolies in this particular. It substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as state interference is concerned, be free to all who will submit to the conditions imposed by congress, and that corporations organized under the laws of one state for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the national government for this national privilege. To this extent, certainly, the statute is a

legitimate regulation of commercial intercourse among the states, and is appropriate legislation to carry into execution the powers of congress over the postal service. It gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.

It is insisted, however, that the statute extends only to such military and post roads as are upon the public domain; but this, we think, is not so. The language is, "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 hereafter be declared such by act of congress, and over, under or across the navigable streams or waters of the United States." There is nothing to indicate an intention of limiting the effect of the words employed, and they are, therefore, to be given their natural and ordinary signification. Read in this way, the grant evidently extends to the public domain, the military and post roads, and the navigable waters of the United States. These are all within the dominion of the national government to the extent of the national powers, and are, therefore, subject to the legitimate congressional regulation. No question arises as to the authority of congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the constitution is not interfered with. Only national privileges are granted.

The state law in question, so far as it confers exclusive rights upon the Pensacola Company, is certainly in conflict with this legislation of congress. To that extent it is, therefore, inoperative as against a corporation of another state entitled to the privileges of the act of congress. Such being the case, the charter of the Pensacola Company does not exclude the Western Union Company from the occupancy of the right of way of the Pensacola and Louisville Railroad Company under the arrangement made for that purpose.

We are aware that, in Paul v. Virginia (8 Wall. 168), this court decided that a state might exclude a corporation of another state from its jurisdiction, and that corporations are not within the clause of the constitution, which declares that "the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states." Article 4, section 2. That was not, however, the case of a corporation engaged in interstate commerce; and enough was said by the court to show that, if it had been, very different questions would have been presented. The language of the opinion is, "It is undoubtedly true, as stated by counsel, that the power conferred upon

congress to regulate commerce includes as well commerce carried on by corporations as commerce carried on by individuals. This state of facts forbids the supposition that it was intended in the grant of power to congress to exclude from its control the commerce of corporations. The language of the grant makes no reference to the instrumentalities by which commerce may be carried on; it is general, and includes alike commerce by individuals, partnerships, associations and corporations. The defect of the argument lies in the character of their (insurance companies) business. Issuing a policy of insurance is not a transaction of commerce. Such contracts (policies of insurance) are not interstate transactions, though the parties are domiciled in different states."

*

The questions thus suggested need not be considered now because no prohibitory legislation is relied upon, except that which, as has already been seen, is inoperative. Upon principles of comity, the corporations of one state are permitted to do business in another, unless it conflicts with the law or unjustly interferes with the rights of the citizens of the state into which they come. Under such circumstances, no citizen of a state can enjoin a foreign corporation from pursuing its business. Until the state acts in its sovereign capacity, individual citizens can not complain. The state must determine for itself when the public good requires that its implied assent to the admission shall be withdrawn. Here, so far from withdrawing its assent, the state by its legislation of 1874, in effect, invited foreign telegraph corporations to come in. Whether that legislation, in the absence of congressional action, would have been sufficient to authorize a foreign corporation to construct and operate a line within the two counties named, we need not decide; but we are clearly of the opinion that with such action and a right of way secured by private arrangement with the owner of the land, this defendant corporation can not be excluded by the present complainant.

Decree affirmed.

Sec. 67. (3) On territorial legislatures.

"Congress shall have power to make all needful rules and regulations respecting the territory belonging to the United States." Const. art. iv, sec. iii.

The Revised Statutes of the United States provide: "The legis lative assemblies of the several territories shall not grant private charters or special privileges, but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate for mining, manufacturing and other industrial pursuits, and for conducting the business of insurance, banks of discount and deposit (but not of issue), loan, trust and guarantee associations, and for the construction or operation of railroads, wagon roads, irrigating ditches, and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries or any other benevolent, charitable or scientific association.”1

1 Revised Statutes of the United States, 1873-74 (§ 1889), as amended July 30, 1886, ch. 818, § 5 (24 St. 170).

Statute June 8, 1878, ch. 168 (20 St. 101) provided that the foregoing section should not be so construed as to prevent the territorial legislatures from creating municipal corporations either by a general or special act, subject to amendment or repeal at any time.

Note. Territorial charter is binding on the state legislature after the state is organized. 1822, State v. N. O. N. Co., 11 Martin (La.) 309; 1831, Williams v. Bank of Michigan, 7 Wend. (N.Y.) 539. But see, 1851, Myers v. Manhattan Bank, 20 Ohio 283.

(b) In the State Constitutions.

Sec. 68. (1) General and special laws, what are.

"The legislature shall pass no special act creating corporations or conferring corporate powers, but they shall provide by general law for the creation and formation of corporations, but all such laws shall be subject to amendment, alteration or repeal at the will of the legislature.

THE STATE, EX REL. JACOB J. VAN RIPER ET AL., v. CHARLES H. PARSONS ET AL.1

1878. IN THE SUPREME COURT OF JUDICATURE OF NEW JERSEY. 40 N. J. L. Rep. 1-11.

On demurrer.

By the charter of Jersey City, passed in 18714 provision was made for the appointment by the senate and general assembly, in joint meeting, of a fire board, and certain other municipal boards.

On March 6, 1877 (Laws 1877, p. 54), an act was passed entitled "An act concerning commissioners to regulate municipal affairs," which provided for abolishing all laws in reference to legislative commissioners, and terminating the offices of the legislative commissioners then in existence, and for substituting therefor new boards, to be elected by the people.

Under this latter act an election was held in Jersey City, and the defendants were elected members of the fire board in lieu of the legislative commissioners. There was no question made with respect to the fairness and formality of this election.

The present proceeding is an information in the name of the attorney-general, in the nature of a quo warranto, charging that the defendants usurp the office to which they were thus elected. Argued at November term, 1877, before Beasley, chief justice, and Justice Depue, Van Syckel and Knapp.

The opinion of the court was delivered by BEASLEY, chief justice.

1Part of opinion relating to another point omitted.

The purpose of this proceeding is to test the constitutionality of the act of the legislature passed on the 6th day of March, in the year of 1877, entitled "An act concerning commissioners to regulate municipal affairs."

The law thus brought under our cognizance is composed of two sections, the first of which declares "that such parts of all public, special and local laws as provide for the appointment of commissions or commissioners, by the senate and general assembly of the legislature, in joint meeting, to regulate municipal affairs in any city in this state, be and the same are hereby repealed," and the second section provides "that in all cases where the above repealing section shall operate in any city in this state, there shall be substituted, in lieu of each of the existing boards of said commissions or commissioners, to exercise all the powers heretofore conferred upon such commissions or commissioners, a board to consist of six persons, namely, one shall be chosen by the electors in each aldermanic district in said city, who shall be a qualified voter of said city." The rest of this latter section consists of regulations touching the mode of canvassing the votes at the election thus authorized, or designating the terms of office and the salaries of the officers thus to be chosen.

Against this law thus summarized, the principal exception that has been urged is, that it is, in substance and effect, special and local, and consequently is in conflict with one of the recent amendments of the constitution of the state. The provision of the primary law thus invoked in clause 2, section 7 of article iv, and which, so far as relates to the present subject, is in these words, viz., "The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say: Regulating the internal affairs of towns and counties; appointing local officers or commissions to regulate municipal affairs," and, again, subsequently, in the same clause, the words are, "the legislature shall pass no special act conferring corporate powers, but they shall pass general laws, under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal or alteration at the will of the legislature.

First, then, is this statute, obviously and upon judicial view of its contents, a local or special law?

In point of form it is manifest that this act does not belong to such a category. It imports generality of provision in all its parts; its title is general, embracing all commissioners appointed by the legislature to regulate municipal affairs, so, in its body, it repeals such parts of all public, special or local laws as provide for the appointment of such commissioners, and substitutes for such officers others, to be selected by the people. Upon the face of this law, therefore, the repealer is general, and the substitution of other agencies is equally so. But it is said that, although such is the frame and aspect of this statute, still it must be regarded as local and special, as of necessity it can be applicable to but a few places of the state, inasmuch as it is well known that but few localities in the state have been subjected to