spect of the matters of specific complaint submitted to them where it shall be found to work unjustly. In witness whereof, the parties to these presents have caused the names of their respective presidents to be hereunto subscribed, and their corporate seals to be attested, the day and year first above written. [SEAL.] A. R. BREWER, THE WESTERN UNION TELEGRAPH COMPANY, By NORVIN GREEN, President. EXHIBIT A.-Present contracts with roads owned or controlled by the Union Pacific Railway. THE AMERICAN UNION TELEGRAPH COMPANY, GENTLEMEN: The American Union Telegraph Company begs to notify you that it has completed lines of telegraph from the Atlantic Ocean to Kansas City, Mo., and Omaha, Nebr., connecting with the principal cities and towns of the United States east of the last named points; that it is the lessee of the Dominion Telegraph Company of Canady; that it has entered into a contract for twenty years with the New French Atlantic Cable Company; that it is now constructing lines throughout the Southern States; that it is prepared to do a general telegraph business for the public; and that (in conformity with the acts of Congress creating and relating to your corporation, known as "The Pacific Railroad Act," approved July 1, 1862, and amendment thereto approved July 2, 1864, and an act approved June 20, 1874, making additions to the 15th section of the act approved July 2, 1864), it desires and proposes to accept from the public telegraphic messages destined for points on your lines, to be handed to your company at Kansas City, Mo., Omaha, Nebr., or other connecting points; and to have your company accept and transmit to the American Union Telegraph Company, at the above-mentioned connecting points all telegraphic messages that may be offered by the public to your company or agents, direeted to be so trausmitted. The American Union Telegraph Company assumes that, in compliance with the provisions of the several acts above referred to, it will be granted as favorable terms and conditions for such exchange of telegraphic business as are or may be allowed by you to any individual or corporation. In explanation of this notice, and for convenient reference, we beg to inclose herewith copies of abstracts from the acts of Congress herein referred to. Very respectfully, The AMERICAN UNION TELEGRAPH COMPANY. Messrs. The PRESIDENT AND DIRECTORS OF THE No. 80 Broadway, New York City. (No. 5.) NEW YORK, February 22, 1880. The PRESIDENT AND DIRECTORS OF THE UNION PACIFIC RAILWAY COMPANY: GENTLEMEN: You have laid before us, as counsel, the letter of the President of the American Union Telegraph Company, under date of February 17, in which he states that his company has completed lines of telegraph from the Atlantic Ocean to the terminus of your road at Kansas City and at Omaha. He also states that it proposes to accept from the public telegraphic messages destined for points on your lines, and that it desires your company to accept and transmit messages to it whenever the sender so directs. He asks that the American Union Telegraph Company be granted as favorable terms and conditions for such exchange of telegraphic business as your company grants to any other corporation or individual. Our opinion is desired as to the duty of your company in his behalf, under its charter and the legislation of Congress. The Pacific roads were authorized by Congress to construct, maintain, and enjoy "a continuous railroad and telegraph from the Missouri River to the Pacific Ocean." Lands were granted and bonds issued by the Government to aid in the construction of the "railroad and telegraph line" It was only on the "completion and equipment of said railroad and telegraph line" that the companies became entitled to lands and bonds from the Government (Act of July 1, 1862, Sec. 5.) One of the conditions of grants by Congress is that the companies "shall keep said railroad and telegraph line in repair and use, and shall at all times transmit dispatches over said telegraph line, &c., "and all compensation (reduced in 1864 to one half) for services rendered for the Government (whether telegraph service or transportation service) shall be applied to the payment of the (Government) bonds and interest until the whole amount is fully paid." (Act July 1, 1862, Sec. 6.) The statutory mortgage lien of the Government expressly extended "to the whole line of the railroad and telegraph " (Ib. Sec. 5). And Congress reserved the right when the "earnings of the entire road and telegraph line should exceed 10 per cent. upon its cost to reduce the fares thereon, if unreasonable in amount. The companies were moreover "required to operate and use said roads and telegraph for all purposes of communication, travel, and transportation so far as the public and Government are concerned as one continuous line, without discrimination of any kind," and it was expressly enacted "not to be lawful for the proprietors of any line of telegraph authorized by this act, to refuse or fail to convey" messages and news "for all persons requiring such transmission. This duty in respect of the telegraph as well as the road was considered so important that it is inforced by penal sanctions, civil and criminal. (Act July 2, 1864, Sec. 15; act June 20, 1874.) The foregoing and numerous other provisions show that Congress placed the telegraph line in respect to its construction, maintenance, and use by the Pacific companies upon precisely the same footing as the line of railroads. Both were integral parts of the great end in view. In respect of both, the duties of the companies are, so to phrase it, personal; and no authortity is given to devolve them on others. On well-known principles of law such franchises are inalienable without express legislative authority. Not only is there an absence of such authority, but its existence is plainly negatived by the nature of the rights reserved to the Government, and the special duties toward the Government and the public enjoined on the companies, which they alone can perform. Thus, the companies are required to transmit messages for the Government, and the earnings of the telegraph line from this source are to be applied in payment for the Government bonds. So, the several Pacific companies are required to operate and use their respective roads and telegraph as one continuous line, without discrimination in favor of or against any of the companies, and it is made unlawful for them, if they are the proprietors of a telegraph line, to refuse or fail to transmit news or messages for all persons. It results therefore that no valid lease or other contract can be made by the companies to surrender or to devolve on others their duty to maintain, control, and manage their respective lines of telegraph. They can no more do this in respect of their lines of telegraph than they can in respect of their lines of railway. Any lease or contract to that effect is, in the language of the law, ultra vires. In view of the foregoing considerations the answer to the question presented on behalf of the American Union Telegraph Company is obvious. Assuming that under their charter the Kansas Pacific and Union Pacific Railroad Companies originally constructed, and thereby became proprietors of lines of telegraph, it is the duty of their successor, the present Union Pacific Railway Company, to maintain and use them. It cannot refuse to receive and transmit messages from and to the American Union Telegraph Company, or any other company or persons without violating its duty and incurring civil and criminal penalties. Any proprietor of a line of telegraph under the authority of the Pacific acts (if there be any such besides the railway companies) is likewise bound to receive and transmit messages for the public or for any other company, under the penalties prescribed by Congress. Very respectfully, SIDNEY BARTLETT. No. 6. TREASURY DEPARTMENT, SECOND COMPTROLLER'S OFFICE, January 15, 1872. In the matter of the account of the Atlantic and Pacific Telegraph Company claiming to be the owners of the telegraph line, built by and along the line of the Union Pacific Railroad. SIR: The questions involved arise in the presentation of a claim of $120.68 for transmitting Government messages over the telegraph line alleged to be the property of the above named company. There is no dispute about the facts in the case or the liability of the United States to make payment. The issue is, to whom shall the amount be paid and upon what principle shall the computation be made. The facts appear as follows: On the 17th of November, 1871, the company, through their secretary and treasurer, A. Nelson, demanded payment of the indebtedness direct to itself, and not through the Union Pacific Railroad Company, alleging that in September, 1869, the telegraph lines belonging to the latter company were bought by the Atlantic and Pacific Telegraph Company. There is no evidence on file showing the nature and extent of the sale and transfer, and the character of the telegraph company is not set forth, whether a corporation existing by virtue of State laws or of United States laws. An examination of the acts of Congress relating to the Union Pacific Railroad, as well as those making land grants and conferring important franchises upon railroads and telegraph companies, fails to show any legislation in respect of the Atlantic an Pacific Telegraph Company. See appropriation act in volumes 12 Statutes at Large, pages 41, 532, 534; 14, Statutes at Large, pages 22, 455; 15, Statutes at Large, pages 111, 173, 303. As the Union Pacific Railroad Company is a corporation, owing its existence to the legislation of Congress, enjoys the privilege of a right of way through the public lands, is the grantee of public lands, the property of the United States, and has a loan of many millions of dollars from the Government, it is very evident that this company could only make a grant of any franchise possessed by itself when authorized by the organic act of its incorporation, or by subsequent legislation of Congress. The act of July 1, 1862 (12 Stat., 489), entitled "An act to aid in the construction of a railroad and telegraph line, and to secure to the Government the use of the same for postal, military, and other purposes," contains no provisions recognizing a telegraph company as distinct and independent of the "Union Pacific Railroad Company"; on the contrary, instead of possessing a dual existence, the "railroad and telegraph line" is throughout the whole statute regarded as one corporation. In the first section of this act, Walter S. Burgess and others, together with five commissioners to be appointed by the Secretary of the Interior and their successors, are created a body corporate and politic with the title of "Union Pacific Railroad Company," to lay out, locate, and construct a continuous railroad and telegraph. In the same section the above persons are hereby constituted and appointed commissioners, and such body shall be called the board of commissioners of the "Union Pacific Railroad and Telegraph Company." Subsequent legislation has not modified the character hereinbefore described of the "Union Pacific Railroad and Telegraph Company." Our corporation only has legal existence by virtue of a law of the United States, and it cannot separate itself into two or more distinct corporations without the authority of Congress. The language of the statute, the various provisions and conditions of the act of incorporation show that Congress looked to one company for the performance of all the duties imposed by it. Congress issued bonds and granted land to this company, and in return required the payment of said bonds at maturity, with annual interest, the railroad and telegraph line to be kept in repair and use, the transportation of the mails, the transmis sion of dispatches over the telegraph line, the carriage of troops, ammunitions of war; in short, all services, proper and usual for a railroad and telegraph to perform, when required. The whole compensation for these services was to be applied to the payment of the bonds and interest. By subsequent legislation (see the act of July 2, 1864, 13 Stat., 359, sec. 5) only one half the compensation for services rendered to the Government by these companies shall be applied to the payment of the bonds issued by the Government in aid of the construction of said roads. It is a self-evident proposition that if the whole of the above amount ($120.68) be paid, not to the "Union Pacific Telegraph Company," but to the "Atlantic and Pacific Telegraph Company," an organization not recognized by authority of Congress, the essential condition of the grant to the former company will be violated. Not only must a moiety of the compensation for services be deducted and applied to the payment of the bonds, in accordance with the requirements of the statute of Congress, but the payment of the balance can only be made to the "Union Pacific Railroad Company," or its agent or assignee. For these reasons I concur with the views expressed by the Quartermaster-General in his elaborate views of the case recommending a payment of moiety of the claim in accordance with the requirements of the laws of the United States on the subject. Very respectfully, your obedient servant, Bvt. Maj. Gen. M. C. MEIGS, JNO. BRODHEAD, Comptroller. Quartermaster-General. A true copy: M. I. LUDINGTON, Quartermaster, U. S. A. BILL IN EQUITY. (No. 7.) CIRCUIT COURT OF THE UNITED STATES, DISTRICT OF NEBRASKA. Western Union Telegraph Company v. Union Pacific Railway Company. To the honorable the judges of the circuit court of the United States for the disof Nebraska: The Western Union Telegraph Company brings this its bill against the Union Pacific Railway Company, and thereupon your orator complains and says: I. The Western Union Telegraph Company was, in 1860, incorporated under the laws of the State of New York, and had constructed and maintained, operated and enjoyed lines of electric telegraph, extending into all the States east of the Missouri River; and the Pacific Telegraph Company was, in 1860, incorporated by an act of the legislative assembly of the then Territory of Nebraska, in that behalf enacted, with authority to construct, maintain, operate, and enjoy a line of telegraph from Omaha, in this district, to Salt Lake, in the Territory of Utah; and in 1861 it had completed the construction of the said line, and was operating the same for the public. In 1864 the said two corporations, in pursuance of the laws of the State of New York and the Territory of Nebraska, became, by due proceedings in that behalf, consolidated into your orator; and thereupon your orator succeeded to, and has ever since held and enjoyed, all and singular the properties, and has enjoyed all and singular the franchises of the said two constituent corporations. II. By an act of Congress of the United States, entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes," approved July 1, 1862, and the several acts amendatory thereof and supplemental thereto, the Union Pacific Railroad Company was incorporated, and was authorized and required to construct, maintain, operate, and enjoy a line of railroad and telegraph from a point on the east bank of the Missouri River, to be fixed by the President of the United States, to a junction with a railroad and telegraph line in said acts authorized to be built, in and from the State of California to such junction; and the said point on east bank of said river from which said road was to be built was fixed by the President opposite the town of Omaha. The said Union Pacific Railroad Company has built its said road from said point, through Nebraska and Wyoming to Ogden, in Utah, where it meets and connects with the said Califor nia railroad. Recently, the said Union Pacific Railroad Company, the Kansas Pacific Railroad Company, and the Denver Pacific Railroad and Telegraph Company, have become consolidated, and assumed the corporate name and style of the Union Pacific Railway Company, the defendant herein, and the last named company has succeeded to all the property, rights, franchises, and duties of the said constituent companies. III. By the act of Congress first above entitled, the said Pacific Telegraph Company was authorized to, and thereupon did, remove its line of telegraph from Omaha to Salt Lake to, and upon the right of way of the Union Pacific Railroad Company; and your orator has duly accepted the provisions of the act of Congress to aid the construction of telegraph lines and to secure to the Government the use of the same for postal, military, and other purposes, which act was approved on the 24th of July, 1866. IV. By the acts of Congress first above referred to, were granted to the said Union Pacific Railroad Company a right of way for the whole length of its railroad, 100 feet wide, and also the right to build, maintain, and enjoy bridges across the Missouri and other rivers, over and across which the said railroad ran, which bridges were parts of said railroad, and by said acts were required to be operated as such. V. At Omaha, and for great distances above and below, the said Missouri River is from 1 to 2 miles wide; its current is very rapid and changing from one place to another between banks 5 miles and more apart; and its volume of water is variable, at times becoming a great torrent, and at others becoming a comparatively small stream. Formerly and for many years your orator carried its telegraph wires across said river on very high masts, but in consequence of the character of the said stream the said wires and masts were constantly liable to and were frequently thrown down, and telegraphic communication between the Atlantic and Pacific States for long periods of time interrupted. The same is true, but in much less degree, of the other rivers crossed by said railroad and your orator's lines. When the said bridge at Omaha was completed, and when the other bridges of said railroad company were built, your orator strung its telegraph wires on each of said bridges, and has maintained its said lines on all of them but that across the Missouri River since 1869, and has maintained them on that across the Missouri River since 1872. It so strung its wires on all of said bridges with the assent of said railroad company, and has ever since maintained them there without objection on its part until the time in that behalf hereinafter mentioned. VI. Your orator has and maintains and affords to the public and the Government the most extensive and complete facilities for telegraphic communication throughout the whole country, furnishing to the Associated Press and newspapers the facilities by which they communicate news to the country and to the business and social communities the like means of communication; and all other facilities and companies in this country combined do not equal one-tenth part of your orator's. The only direct line of telegraphic communication from California to the Atlantic States is by your orator's lines along the said Union Pacific Railroad and across its bridges, and especially that at Omaha across the Missouri River; and if that be interrupted, very great injury will be inflicted on the public and the Government. Your orator is daily and hourly in the receipt of large tolls for the transmission of messages by its said lines, and its business in that behalf is largely dependent upon the constant maintenance of its lines in working order, and the interruption thereof, if for a brief period only, especially at the Missouri River at Omaha, will be very prejudicial to it, beyond what, during the same, it might earn in money, and its damage cannot be estimated. VII. Recently, persons having control of said defendant have formed a telegraph company, which they design to make a rival and competitor of your orator; and they have caused your orator's telegraph lines in different parts of the country to be cut, and its offices severed therefrom, and the said lines run into the offices of said proposed rival company, and connected with its lines. And on the first of March, instant the president of said defendant notified your orator that it must at once remove its lines from said bridges, and the said defendant's officers have and do threaten to tear the same from said bridge and throw them into the river; and at other said bridges, and on its right of way, to destroy the said lines, at the same time maintaining the lines and wires of said proposed rival company upon and over the same without objections; and your orator charges that the said defendant has required your orator to remove its said lines from the said bridge and bridges, and threatens to, and will, tear the same down and destroy them, in order to injure your orator's business and direct it to the lines of its proposed rival. And your orator well hoped that the said defendant would desist from said unlawful acts, as it ought to do, but it persists in its intention to commit the same, and it will carry its said intention into effect unless restrained therefrom by the order and injunction of this court. Wherefore your orator prays the aid of the court as follows: 1. That the said defendant answer this your orator's bill, under its corporate seal, without oath, according to the course and practice of this court. 2. That the said defendant, its agents, employés, officers, attorneys and counselors, |