from.34 Congress has power also to legislate upon matters within said District, which generally come within what is known as the police power, viz.: the public safety, health, peace and morals, and this authority to so legislate is the same as that of the State legislatures within their several jurisdictions, 35 It might, therefore, be fairly argued that Congress by not expressly excluding the District of Columbia in the Post Roads Act intended to include it within the provisions of said act, although the express words thereof are the "military or post roads of the United States," and not of the United States and Territories.36

§ 49. Post Roads Act applies to companies thereafter formed. -The Post Roads Act not only expressly so provides, but it is also held that it applies to all then existing telegraph companies and to all those thereafter organized and electing to accept its provisions.37

Foreign

§ 50. Post Roads Act-Regulation of commerce corporation. It is a general rule that a corporation is a mere creature of local law, and can have no legal existence beyond the limits of the State of its creation, and is entitled to no recognition in other States, except on the principle of comity. It is not a citizen within those clauses of the Federal Constitution, which provide for citizens of each State all the privileges and immunities of citizens in the several States, and a State may prohibit foreign companies from doing business within its territory or may prescribe the conditions upon which such companies may transact business therein.38 But this rule does not

34 Baltimore & Ohio R. Co. v. District of Col., 10 App. Dist. Col. 111, 25 Wash. L. Repr. 118.

35 Lansburgh v. District of Columbia, 11 App. Dist. Col. 512, 25 Wash. L. Repr. 777, 56 Alb. L. Jour. 488.

36 See § 46, herein, "What are Post and Military Roads?"

37 Southern Bell Teleph. & Teleg. Co. v. City of Richmond (U. S. C. C., E. Dist. Va., 78 Fed. 858, 6 Am. Elec. Cas. 1, 7. See 85 Fed. 19, 42

U. S. App. 686, 28 C. C. A. 659, 98 Fed. 671; Richmond v. Southern Bell Teleph. & Teleg. Co., 174 U. S. 761, 19 Sup. Ct. 778, 43 L. Ed. 1162.

381 Joyce on Insurance (ed. 1897), § 328, and authorities; Cook on Corp. (ed. 1898), §§ 696-700, 757-759; Morawetz on Private Corp. (ed. 1882), §§ 500-503, 508-514; Kidd v. Pearson, 128 U. S. 1, 2, Inter. Com. Rep. 232, 32 L. Ed. 346, 9 Sup. Ct. 6; Baltimore & Ohio R.

apply to foreign corporations engaged in interstate commerce, or to telegraph companies, claiming under the Post Roads Act. 39 It is held, however, that a constitutional provision requiring as a condition precedent to doing business in the State, that a foreign corporation shall have a known place of business and an authorized agent therein does not violate the Federal Constitution and that a domestic telegraph company will not be enjoined from impeding and obstructing a foreign telegraph company from constructing and operating its lines within the State, where the complaint does not show a compliance with said condition precedent. But this case also holds that a State cannot exclude such foreign corporations. 40 And we have seen elsewhere that a State cannot exclude such corporations, when

Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; Bastian v. Modern Woodmen of America, 166 Ill. 595, 46 N. E. 1090, revg. 68 Ill. App. 378; Peter Schoenhofen Brew. Co. Application, 8 Penn. Super. Ct. 141, 42 Week. N. of C. 402, and cases cited; But as to Fourteenth Amendment of the Constitution, see Black v. Caldwell (C. C., D. Mont.), 83 Fed. 880; New York, Park, etc., v. Roberts, 171 U. S. 658, 19 Sup. Ct. 58, 70, 43 L. Ed. 323, 17 Nat. Corp. Rep. 677; Hammond Beef, etc., Co. v. Best, 91 Me. 431, 40 Atl. 338. See § 52a, herein.

39 Sce the folowing cases: United States: Postal Teleg. Cable Co. v. Charleston, 153 U. S. 692, 38 L. Ed. 871, 14 Sup. Ct. 94; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649; Southern R. Co. v. Asheville, 69 Fed. 359; Norfolk & Western R. Co. v. Pennsylvania, 136 U. S. 114, 10 Sup. St. 958, 34 L. Ed. 394, 3 Inter. Com. Rep. 178. Alabama: Culberson v. American Trust & B. Co., 107 Ala. 457, 19 So. 34; American Un. Teleg. Co. v. Western Un. Teleg. Co., 67 Ala. 26,

42 Am. Rep. 90. Georgia: Western Un. Teleg. Co. v. Howell, 95 Ga. 194, 22 S. E. 286, 3 Inter. Com. Rep. 516, 30 L. R. A. 158, 6 Am. Elec. Cas. 853; Western Un. Teleg. Co. v. Michelson, 94 Ga. 436, 5 Inter. Com. Rep. 236, 21 S. E. 169. Ohio: Haldy v. Fornow-Haldy Co., 3 Ohio Nisi Prius, 43, 1 Ohio Law Ct. Dec. 118. Oklahoma: Butner v. Western Un. Teleg. Co., 2 Okla. 234, 4 Inter. Com. Rep. 1087, 37 Pac. 1087. Virginia: Western Un. Teleg. Co. v. Tyler, 90 Va. 297, 44 Am. St. Rep. 910. Examine Horn Silver Min. Co. v. New York, 143 U. S. 305, 36 L. Ed. 164, 4 Inter. Com. Rep. 57; 12 S. Ct. 403, Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 39 L. Ed. 311, 5 Am. Elec. Cas. 636; 15 S. Ct. 268, 360, Southern Bldg. & L. Assn. v. Norman, 95 Ky. 294, 17 Ky. L. Repr. 887, 31 L. R. A. 41, 32 S. W. 952. See sections herein as to taxation, license fee or privilege tax, penalty stat utes.

40 American Un. Teleg. Co. v. Western Un. Teleg. Co., 67 Ala. 26, 42 Am. Rep. 90.

they claim the benefit of the Post Roads Act and have complied with its provisions. 11

§ 51. Acceptance necessary of Post Roads Act. In order to obtain the benefits of the Post Roads Act, telegraph companies are required to accept in writing, filed with the PostmasterGeneral of the United States, the conditions imposed. Compliance with this requirement is, therefore, an essential prerequisite to the enjoyment of the privileges conferred, and failure so to do precludes a company from building a telegraph line over a navigable stream, and such failure is fatal to a proceeding to condemn and appropriate a portion of a bridge for the construction of a line of magnetic telegraph. +2 In a Maryland case, however, 43 the court, Miller, J., says: nothing in these records to show that the defendant has filed its acceptance of the Act of 1866; but as this can be readily done, it is proper we should give our views of the construction and effect of these statutes." 44

§ 51a.

"There is

Certificate of Postmaster-General competent evidence of acceptance. The certificate of the Postmaster-General of the

41 See § 65 herein. Examine also the telegraph cases cited under the second note to this section.

42 Chicago & Atchison Bridge Co. v. The Pacific Mut. Teleg. Co., 36 Kan. 113, 2 Am. Elec. Cas. 274, 278, 16 Am. & Eng. Corp. Cas. 271, 12 Pac. 535. See also Western Un. Teleg. Co. v. Atlantic & Pac. States Teleg. Co., 5 Nev. 102, Allen's Teleg. Cas. 428.

43 American Teleph. & Teleg. Co. v. Pearce (Ten Cases), 71 Md. 535, 3 Am. Elec. Cas. 169, 176, 18 Atl. 910.

44 The Post Roads Act of 1866 and the Act of 1872, which latter declared all railroads to be post roads. The following is a form of acceptance, passed as a resolution by the directors of the Western Union Telegraph Company and filed with the Postmaster-General: "Re

solved, 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," given in Pensacola Teleg. Co. v. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 250, 251, 252,

United States, is competent evidence to show the acceptance of the provisions of the Act of Congress of July 24, 1866, 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." 45

§ 52. Effect of acceptance of Post Roads Act.- A telegraph company which has accepted the provisions of the Post Roads Act is entitled to all the benefits and privileges conferred thereby, and the grant contained in said act extends to the public domain, to military and post roads then or thereafter declared to be such, and to the navigable waters of the United States; and since there is nothing to indicate an intention of limiting, in this respect, the effect of the words of said act, they should be given their natural and ordinary signification. But such accepting telegraph companies become, however, by virtue of their acceptance of the terms of the grant in said Post Roads Act, Federal agencies as to Government business, and they are obligated to give precedence to the United States in the use of their lines for such public business, for postal, military and other purposes, at rates to be fixed by the Postmaster-General.47 As Federal agencies these telegraph com

45 Postal Teleg. Cable Co. v. Oregon Short Line Ry. Co., 23 Utah, 474, 486, 7 Am. Elec. Cas. 417, 422, 65 Pac. 735.

40 Mercantile Trust Co. v. Atlantic & Pacific R. Co. (U. S. C. C., So. Dist. Cal.), 63 Fed. 513, 910, 5 Am. Elec. Cas. 207, 217, 218, per Ross, Dist. J. (quoting in affirmance from Pensacola Teleg. Co. v. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 250); San Francisco v. Western Un. Teleg. Co., 96 Cal. 140, 4 Am. Elec. Cas. 595, 596, per McFarland, J.

47 Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067, 1 Am. Elec. Cas. 373, 375, per Mr. Chief Justice Waite; Western Un. Teleg. Co. v. Mayor of the City of New York,

38 Fed. 552, 2 Am. Elec. Cas. 196, per Wallace, J.; City Council of Charleston v. Postal Teleg. Cable Co. (Ct. C. P., Charleston, S. C., 1891), 9 Ry. & Corp. L. J. 129, 3 Am. Elec. Cas. 56, 62-65, per Izlar, J. "It has put its lines at the service of the United States for postal, military and other purposes. and given precedence to its business." Postal Teleg. Cable Co. v. Charleston, 153 U. S. 692, 5 Am. Elec. Cas. 663, 664, 14 St. Ct. 1094. per Mr. Justice Shiras, affg. 56 Fed. 419, 4 Am. Elec. Cas. 620. "By this action the company so accepting puts its lines at the service of the United States for postal, military and other purposes and gives precedence to its messages over all other business. It thus becomes an

panies have

right to come into a Federal court in all matters relating to their agency, and this, irrespective of the amount in controversy."

48

§ 52a. Foreign corporations - Incorporation prerequisite to acceptance Post Roads Act does not confer franchise.- The Western Union Telegraph Company derived its franchise or right to exist and be a corporation and to do telegraphic business from the State of New York and not from the Government of the United States. It was created a number of years before the enactment of the federal statute of 1864. Its creation was a prerequisite to its acceptance of that enactment, such acceptance did not create it or empower it to do business. But such corporation's sole right to carry on business in the State of Missouri arose out of the Act of Congress of 1866, as it never received any authority or permission from that State to erect its poles or string its wires on, over or upon the public highway or places in that State or to do business therein. Nor is there any law in that State granting such permission or franchise to any foreign telegraph company, although telegraph companies may be organized under the State laws with authority to maintain their poles and wires along and upon public highways.49

§ 53. Post Roads Act does not authorize condemnation.— The Post Roads Act does not confer upon telegraph companies

agent of the Government." Western Un. Teleg. Co. v. City Council of Charleston, 56 Fed. 419, 4 Am. Elec. Cas. 621. See Mem. decision 163 U. S. 711, 41 L. Ed. 309, 16 Sup. Ct. 1208.

The Western Union Telegraph Company is, by virtue of such rights as it derived by acceptance of the Post Roads Act, a governmental agent. "The trial court was right in holding that the defendant is a governmental agent, but this only extended to its relations between the government and

its agent;
V. Western Union Teleg. Co., 165

State ex rel. Gottlieb

Mo. 502, 65 S. W. 775, 8 Am. Elec. Cas. 390, 396, per Marshall, J.; a case as to taxation of franchise, case affirmed, Western Union Teleg. Co. v. State Missouri, 190 U. S. 412, 47 L. Ed. 1116, 23 Sup. Ct. 730.

48 Western Un. Teleg. Co. v. City Council of Charleston, 56 Fed. 419, 4 Am. Elec. Cas. 620-622.

49 State ex rel. Gottlieb v. Western Un. Teleg. Co., 165 Mo. 502, 518, 525, 65 S. W. 775, 8 Am. Elec. Cas. 390 (decided Dec. 3, 1901), per Marshall, J.; case affirmed Western Un. Teleg. Co. v. State Missouri, 190 U. S. 412, 47 L. Ed. 1116, 23 Sup. Ct. 730.