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did not extend only to such military and post roads as were upon the public domain. The state law of Florida conferring exclusive privileges upon a state telegraph company was declared to be in conflict with the legislation of congress.

This act of 1866 was permissive only. The privilege conferred carried with it no exemption from the ordinary burdens of taxation in a state where the companies owned or operated lines to telegraph, nor did it carry with it any unrestricted right to appropriate public property of a state or city, but it was like any other franchise, to be exercised in subordination to public as well as private rights.2

The act of 1866 does not grant to telegraph companies accepting its provisions the power of eminent domain over the private property of railroad companies. A railroad right of way is not public property though often called a highway and subject to a certain extent to state and federal control. A telegraph company cannot, therefore, under the act of 1866, occupy a railroad right of way except by the consent of the railroad or under the power of eminent domain; and in the absence of federal or state provision for the exercise of such right of eminent domain, the railroad right of way can be occupied with telegraph poles only with the consent of the railroad comany.3

The Interstate Commerce Commission is vested with jurisdiction over the government-aided telegraph lines constructed under the Pacific Railroad Act by the act of 1888, whereunder the commission is required to ascertain the facts and determine and order what arrangement should be made for the interchange of business required by the act, and it was made the duty of the railroad and telegraph companies to file with the Interstate Commerce Commission all contracts relating to the control and use of their telegraph lines and to file annual reports with the commission as to their condition and business.

1 Western Union Tel. Co. v. Massachusetts, 125 U. S. 530 (1888), 31 L. Ed. 790.

2 St. Louis v. Western Union Tel. Co., 148 U. S. 92 (1893), 37 L. Ed. 380; Western Union Tel. Co. v.

Ann Arbor R. R. Co., 178 U. S. 239,
44 L. Ed. 1052 (1900).

3 Western Union Tel. Co. V. Pennsylvania R. Co., 195 U. S. 540, 594, 49 L. Ed. 312, 332.

4 Act of Aug. 7, 1888, 25 Stat. L. 382.


The supreme court, construing this act, held that it was a lawful exercise of the powers of congress and that a contract between the Union Pacific Railway and the Western Union Telegraph Company, giving the latter company control of all telegraph business on its roads, was void. The act in this case required that the railroads should exercise by themselves alone all the telegraph franchises conferred upon them, and to allow equal facilities to connecting lines on terms just and equitable; the right of connection with equal facilities being given to any railroad which had accepted the provisions of the act of 1866.1

The provisions of the Telegraph Act of July 24, 1866, did not apply to interstate telephone companies whose business is that of transmitting articulate speech between different points.2 as it was held by the supreme court that in 1866 nothing was known of the telephone; and when therefore the act of 1866 spoke of telegraph companies, it only meant such companies as employed the means thus used or embraced by then. existing inventions for transmitting by sounds or by signs in writing.

§ 56 (52). The release of the federal regulating power.-Interstate commerce may be regulated not only by the action of congress, but also by its inaction, as where the subjects require uniform regulation, the inaction is equivalent to a declaration that the commerce must be free. There is also a form of regulation, already referred to, where congress divests particular subjects of their commercial character, thus subjecting them, when delivered to their consignees in the original packages, to the police power of the state. It was contend in the Rahrer ployes of the telegraph company in constructing and maintaining the line, free of charge. This case was therefore distinguished from the Union Pacific case.


1 See also United States V. Northern Pac. R. Co., 120 Fed. 546 (1903), where the circuit court held that a contract of the Northern Pacific R. Co. with the WestUnion Telegraph Company was not violative of the act, as it provided for the exclusive use of one or two wires by the railroad company, for which the railroad company agreed to pay one-third the cost of construction and to transport the property and em

2 Richmond V. Southern Bell Telegraph & Telephone Co., 174 U. S. 761, 43 L. Ed. 1162 (1899), reversing the circuit court, 78 Fed. 858, and the circuit court of appeals, 85 Fed. 19, and 28 C. C. A. 659.

Case that the Wilson Act of 1890 was void, as the power of regulation vested in congress could not be delegated to the states. The court held that this was not a delegation of the federal power, but was merely a designation that certain subjects of interstate commerce should be governed by a rule which divested them of that character at an earlier period of time than would otherwise be the case. Congress, said the court, did not use terms of permission to the states to act, but simply removed an impediment to the enforcement of the state laws created by an absence of specific utterance on its part in respect to imported packages in their original condition. It imparted no power to the state not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction.


In the later Iowa case, in 1898, the court, in holding that the term "arrival" meant delivery to the consignee, said · that the act of 1890 was not to be construed as authorizing states or state laws to forbid the bringing into the state at all. In other words, the power of the state did not attach to the acts until the termination of the interstate commerce shipment, and that did not occur until the actual delivery of the shipment to the consignee. The court said this construction of the act of 1890 rendered it unnecessary to consider whether, if the act of congress had submitted the right to make interstate commerce shipments to state control, it would be repugnant to the constitution.

The right of congress therefore as adjudged in these cases to surrender its regulating power only extends to the limitation of the original package rule as to a certain class of commodities, so that they should lose their interstate character and become subject to the police power of the state when delivered to the consignee, and not when, as is the case with other shipments, the original package is broken up or sold and thus becomes merged in the general mass of property in the state.

§ 57 (53). Regulation by the delegation of power.-Congress in its legislation upon interstate commerce has vested in the • Rhodes v. Iowa, supra, page 31,

1 Supra, § 18.

Interstate Commerce Commission certain discretionary power in the enforcement of the statutes. Thus, in the Interstate Commerce Act, in section 4, the commission is authorized in special cases, after investigation, to grant an exemption to the carriers from the requirement of the section, that no greater rate shall be charged under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line, and the commission is authorized from time to time to prescribe the extent to which such carrier may be relieved from the operation of said statute. Also in the socalled Safety Appliance Act, the commission is, under section 7, authorized to grant an extension of time within which the common carrier may comply with the requirement of equipment with automatic car couplings prescribed by the act.

Under the act of March 3, 1899, concerning the construction of bridges over navigable rivers, the secretary of war is not only vested with the duty of approving plans for the construction of bridges, but is, under section 11, given the power to establish harbor lines, and under section 3 to permit in his discretion temporary deposits in the rivers.

These cases seem to be within the rule declared by the supreme court in sustaining the powers conferred upon the president by section 3 of the act of 1890 to suspend by proclamation the free introduction of certain articles when satisfied that the country producing them imposes duties upon the products of the United States. The court said this was not a delegation of legislative power, but merely made the president the agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect. He had no discretion in the premises except in respect to the duration of the suspension order, and that related only to the enforcement of the policy established by congress.

There is no unconstitutional delegation of legislative and judicial power in the authorization of the secretary of war, under the River and Harbor Act of March 3, 1899, to require, after a hearing, such changes or alterations in a bridge as

1 Field v. Clark, 143 U. S. 649 (1892), 36 L. Ed. 294. See also Butfield v. Stranahan, 192 U. S. 470 (1904), 48 L. Ed. 525. On

general subject of delegation of legislative power, see State v. Atlantic Coast Line, 56 Fla. 617 32 L. R. A. (N. S.) 639 (1908).

would render navigation reasonably free and unobstructed, when he was bound to give a hearing to the parties before taking action, and there was in this proceeding no taking of private property for public use without compensation.1

A legislative body may delegate to an executive or administrative officer the power to find some fact or situation on which the operation of a law is conditioned, or to make and enforce regulations for the execution of a statute according to its terms, but it cannot delegate its law-making power, its power to exercise the indispensable discretion to make, to add to, to take from, or to modify the law. It was therefore held that congress did not in fact delegate, and could not delegate to the secretary of agriculture or to any other executive officer, the power to add to the class of railroad companies, or to the acts punishable under a penal statute, such others as in his judgment ought to be punished thereunder."

§ 58 (54). Additional acts of congress in the regulation of commerce.-Congress in recent years has enacted several laws in the regulation of interstate commerce. The act establishing a Bureau of Animal Industry, for preventing the exportation of diseased cattle, and for the extirpation of disease among domestic animals, enacted May 29, 1884, was held by the supreme court not to cover the subject of transportation of live stock from state to state, so as to preclude the enactment of state legislation for the protection of the property of the state.

Congress in recent years has passed a number of acts primarily for the promotion of the safety of employes and thus for the safety of travelers on interstate railroads. Thus, it

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