of all discrimination, and everything of that kind were provisions that had a direct and express reference to messages offered by every individual; but a second glance at the act will show that this is a misapprehension. The act reads that the several companies authorized and required to operate and use roads and telegraph lines shall do so without discrimination of any kind in favor of the business of any road or either of said companies. That is the direct subject of that phraseology, and then they are required to convey for all persons requiring the transmission of news and messages of like character. This provides for the conveying for all persons messages presented by them, but the clauses that prohibit discrimination and require the affording of equal facilities to all, are not clauses that have any reference in that statute to anybody except the other railroad companies. At the same time I desire to refer directly to these matters with regard to my own views. My views have for years been exactly in conformity to that announced by all statutory provisions.

The COMMISSIONER. Has there been any adjudication upon the effect of the telegraph act of July 2, 1864, as related to the main line of the Union Pacific Railway? Mr. SWAYNE. That was expressly passed upon, if I understand rightly, in this decision by Judge McCrary.

The COMMISSIONER. That dispute arose on the line of the Kansas Pacific Road, did it not?

Mr. SWAYNE. Judge Miller passed on the Act of July, 1864.

The COMMISSIONER. And that gave rise to the controversy with the Kansas Pacific Railroad Company, where the construction of the telegraph line was somewhat different from its construction on the main line. Now, my inquiry is whether there has been any adjudication upon the telegraph act of July 2, 1864, as related to the main line of the Union Pacific Railway.

Mr. SWAYNE. Oh, both have been subject to like adjudication.

The COMMISSIONER. Can you refer me to any decision to that effect?

Mr. SWAYNE. There were two decisions, one rendered by Judge McCrary and one rendered by Judge Miller. The decision by Judge McCrary related to the line from Omaha to Ögden, and the one by Justice Miller related to the Kansas Pacific. In the case before Judge McCrary he decided that the act of July 2, 1864, had been in effect violated by the Union Pacific Railway Company in a contract which it had made with the Western Union Telegraph Company, but he went on to say that inasmuch as the Western Union Telegraph Company bad contributed so largely to the building of that line and had otherwise become interested in it, the equities which arose were such that he would not allow any breach of that contract until those equities had been compensated. That is as I understand it. It has been three or four years since I looked at it, but that is my impression.

The COMMISSIONER. Then both of these decisions were based on the telegraph act of 1864.

Mr. SWAYNE. Oh, no, Judge Miller's decision was based on the telegraph act alone and Judge McCrary's decision was on the railroad act.

The COMMISSIONER. Without regard to the two acts of 1864 ?

Mr. SWAYNE. Now, at the same time let me say that that question is in a certain sense immaterial, for the reason that the phraseology of these two acts is verbatim alike. They were both passed the same day, and they are both in totidem verbis, except that one grants a certain permission to one telegraph company by name, and one grants permission to another telegraph company by name, and the difference between the two decisions is not upon the difference of the phraseology or construction of the law, for there can be none, but upon the fact that the section in each instance pro vides two different alternate courses which the telegraph company may pursue. On the Kansas Pacific it pursued one course resulting in but one line being constructed, and avoiding confusion with the telegraph company, and thereby the provisions of the telegraph act of 1864, as the judge decided, became inoperative. The COMMISSIONER. As to the line of the Kansas Pacific?

Mr. SWAYNE. Well, on the main line Judge McCrary held that the provision of the acts of 1864 were operative, and had been infringed, but that the circumstances of the infringement had given rise to such equities as that the contract must stand until the equities were adjusted. Do I make that plain?

The COMMISSIONER. Yes.

Mr. SWAYNE. Now these equities have never been adjusted and the injunction, as I understand it, is really in force.

The COMMISSIONER. Do you regard the telegraph act of July, 1864, as affecting the rights of the Union Pacific Railway Company on their main line ↑

Mr. SWAYNE. Not at all by the Idaho act.

The COMMISSIONER. Then whatever rights you claim are not affected by the telegraph act of 1864, as you claim?

Mr. SWAYNE. Not by the Idaho act, but at the same time one act is in the same words as the other, so that whatever one act does the other act does. Here are the two acts, and I will read them.

The COMMISSIONER. You read one, while I read the other, by way of comparison. Mr. SWAYNE. I will read section 19 of the act of 1862:

"That the several railroad companies herein named are authorized to enter upon an arrangement with the Pacific Telegraph Company, the Overland Telegraph Company, and the California State Telegraph Company, so that the present line of telegraph between the Missouri River and San Francisco may be moved upon or along the line of said railroad and branches as fast as said roads and branches are built; and if said arrangement be entered into, and the transfer of said telegraph line be made in accordance there with to the line of said railroad and branches, such transfer shall, for all purposes of this act, be held and considered a fulfillment on the part of said railroad companies of the provisions of this act in regard to the construction of said lines of telegraph. And, in case of disagreement, said telegraph companies are authorized to remove their line of telegraph along and upon the line of railroad herein contemplated without prejudice to the rights of said railroad companies named herein."

The COMMISSIONER. Yes, as to the substantial portions the acts are similar, only the companies named are different.

Mr. SWAYNE. When it came to the act of 1864, instead of incorporating that, the subject was placed in a separate act. But what I am calling attention to is that the Idaho act does not affect the rights of the Union Pacific Railway Company?

Mr. WILSON. As I understand it the act of July 2, 1864, an act entitled "Increased facilities of telegraph communication between the Atlantic and Pacific States and the Territory of Idaho," in its fourth section makes direct reference, because it says that the several railroad companies authorized by the act of Congress of July 1, 1862, are authorized to enter into arrangements with the United States Telegraph Company, &c. So it specifically designates these railroads, and shows that it is express in its terms. Mr. BATES. I would ask whether or not this contract between the Union Pacific Railway Company and the Western Union Telegraph Company, dated July 1, 1881, is officially before the Commissioner?

The COMMISSIONER. It is.

Mr. BATES. If so, I would ask whether or not, in view of the great consequences involved, the Baltimore and Ohio Telegraph Company may be furnished a copy of the same?

The COMMISSIONER. It is one of the papers on file in this office, and I know of no reason why there may not be copies of it made under the rules of the office.

Mr. SWAYNE. Our feeling is that the whole object of these proceedings has been to get that contract.

Mr. CROSS. We want one like it.

Mr. SWAYNE. Yes; and this whole proceeding is directed to one point, to get access to our private papers.

The COMMISSIONER. The same question has arisen before in this office. The rule that I have been acting under is, that where papers are on file in this office they are of record as public papers, but are not accessible unless for sufficient reasons. I have always required that where a paper of that kind was desired by any party properly authorized to receive it, he should get the permission of the Secretary of the Interior. I readily recognize that this office ought not to be made a means of prying into the private affairs of any company with which the public has no concern, and therefore I feel bound to protect the papers in this office against unnecessary publicity.

Mr. CROSS. This contract comes under the resolution of inquiry passed by the Senate, and I take it the Commissioner will incorporate this contract in his report to the Senate.

The COMMISSIONER. I should consult the Secretary on the subject. At the same time I am free to say that all papers on file in this office are open to all proper inquiry by all proper persons in interest.

Mr. CROSS. The question that might arise in this inquiry is, whether that contract between the Union Pacific Railway Company and the Western Union Telegraph Company discriminates in favor of the Western Union. I consider that the production of this contract is germane to the inquiry of the Senate.

Mr. BATES. I would state in relation to the request that I make for a copy of this contract, that the Baltimore and Ohio Telegraph Company is already a very large telegraph company; large as to extent of country covered, large as to mileage, and large as to business. At the very outset of our inquiries we are met by six months' delay on the part of the Union Pacific Railway Company to give us any kind of satisfactory information. The Union Pacific Railway Company has, as I said a while ago, alleged through Mr. Atkins and in Mr. Adams' letter, its willingness to accept telegraph business generally from our company and others without discrimination of any kind, but we are unable to ascertain even the points reached by the Union Pacific Company's lines; and as I believe, and as I have said in my letter to Mr. Adams, the reason why that information is withheld from us is because of the contract in existence between the railway company and the Western Union Telegraph Company. ToS. Ex. 2-4

day that contract is referred to by the president of the Western Union Telegraph Company in his letter which has been read, as a reason why the Union Pacific Railway Company should withhold from the Baltimore and Ohio Company and others any telegraph facilities. Now, that we may know the ground upon which we stand, it seems to me very essential that we should have that contract before us.

The COMMISSIONER. You may consider this contract is before you and open to your inspection fully. But the inquiry you made was whether it would be reported as part of my answer to this resolution. That would make it a public document and pen to everybody. It is open to your inspection of course, and if the Secretary of the Interior shall so decide it shall be made a part of my reply to this resolution.

Mr. BATES. It is a long document, and many provisions in it of different kinds, some of which General Swayne has elaborated to-day, and in order that we may meet any objections that have already been made or may be urged by either of the companies on the other side against our present demands, we ought I think in fairness, have a full copy of the contract. I am not asking for it to-day, but within a reasonable time, and I only urge these reasons why we ought to have it. Now, before Mr. Reiff makes his remarks in reference to the early history of this Kansas Pacific line, I want to make a brief statement.

Mr. WILSON. This resolution of the Senate directs the Secretary of the Interior to make inquiry as to whether these roads affected by the act approved July 1, 1862, have constructed and are maintaining and operating their own lines of telegraph. That is one branch of this inquiry. And whether telegraphic messages are accepted and transmitted for all persons and corporations without discrimination as to price, and other conditions, as provided in section 15 of the act above, referred to, these are the two things before the Commissioner.

The COMMISSIONER. If I were to answer that resolution by its letter I would say no to both of these, on the authority of the responses made to me; but that would not be answering the resolution. The purpose of this resolution is to obtain the necessary information as to what the relations of this company are to the telegraph business of others. The claim is that these gentlemen have a right on behalf of the Baltimore and Ohio Company to insist upon traffic arrangements. It is not simply whether they have a right to take any particular message and transmit it, because that the company would do, but have they the right, under the act of Congress, to demand of the Union Pacific Railway Company a traffic agreement by which their business shall be mutually exchanged?

Mr. SWAYNE. Have they a right to demand from the Union Pacific Railway Company that they be treated differently from a single individual or corporation? That is the question. Have they a right superior to a private individual? That is the whole scope of it. The question is whether they have higher rights than an individual.

The COMMISSIONER. What I wish to do is to auswer the resolution fairly and in the proper spirit.

Mr. WILSON. As far as I am able to perceive, the Baltimore and Ohio Telegraph Company is not here complaining that they have ever been refused anything. They have not as far as I can see any line ruuning to Kansas City or Omaha. I understood from the outset by Mr. Bates's remarks that the Baltimore and Ohio Telegraph Company expected in the future to get a line to Omaha, and some time in the future they expected to get to Kansas City, and they are prosecuting this inquiry for the purpose of finding out what they can do when they get there.

The COMMISSIONER. What I desire from Mr. Bates is that he indicate under what law or parts of law he claims the right to insist upon an arrangement which sball compel the Union Pacific Railway Company to make a traffic arrangement for interchange of business, which is a very different thing from the mere transmission of a particular message.

Mr. BATES. Well, hardly so. I undertook a while ago to formulate my views on that point, and I might repeat them here, if they have been misunderstood.

The COMMISSIONER. I want to get a clear idea of the distinction you make between your right to have such arrangement for interchange of business for the reception and transmission of telegrams in general coming over your line and the right which you admit and concede you have to send a particular message at any time upon the payment of usual rates without discrimination. As I understand it, you are not seeking here the right to send a particular dispatch, but an arrangement to send all dispatches which you choose to send over that road under an arrangement with it.

Mr. SWAYNE. Including credit and a mechanical contract with our wires. They want more than the Western Union. The Western Union have mechanical connection with us. The Baltimore and Ohio Telegraph Company want to pay the same price for carrying messages over the Union Pacific Railway Company's lines as is charged the Western Union for letting them pass through the depot, and then they want everything at the same price the Western Union gets it. My view of the law is that

A

an examination of the statutes will show that they simply put upon the company the common law duty of equality.

The COMMISSIONER. Do you consider, Mr. Bates, that it is a discrimination against your company if the Union Pacific Railway Company refuse to make an arrangement to transmit over its lines all dispatches received by your company to points destined on the railway company's lines, the keeping of accounts of credit, &c.

Mr. BATES. I do. Our demand is that the Union Pacific Railway Company, and later on all the land-grant railroads, shall accept from the Baltimore and Ohio Telegraph Company a general telegraph business upon the same terms as to rates and conditions and the keeping of accounts as the Union Pacific and the other land-grant roads accept like business from the Western Union Telegraph Company, and that the Union Pacific Company shall accept at its stations messages which may be tendered to its operators destined for points on the Baltimore and Ohio Telegraph Company's lines, as such destination is indicated in the message, and transfer at the connecting points such messages to the Baltimore and Ohio Company, and further that in the conduct of such general exchange of telegraph business the same facilities shall be given us, namely: Wire or mechanical connections, the keeping of accounts, &c., as are furnished to the Western Union Telegraph Company; in other words, we ask to be treated as any other telegraph company is treated or may be treated, and that we may be treated by the Union Pacific Railway Company with respect to general interchange of telegraph business in the same manner as that road treats connecting railroad companies in the exchange of railway business.

The COMMISSIONER. I will ask you, Judge Swayne, please to reply to that, giving the views of the Union Pacific and Western Union Companies as to their assent or dissent from that proposition.

Mr. SWAYNE, I do not understand exactly what that demand is, and I cannot answer, but the view we entertained is that the Union Pacific Railway Company is limited to dealing with the Baltimore and Ohio Telegraph Company precisely as if it were an individual offering a message or a succession of messages; that such duty does not extend to the keeping of a system of mutual accounts, the extension of credit, the affording of mechanical connection or to anything beyond the receipt at the telegraph offices of the Union Pacific Railroad Company, or any of them, of any and all messages brought to it by the Baltimore and Ohio Telegraph Company upon precisely the same terms as is brought to it by an individual, the transmission and delivery of such messages if intended for points upon the lines of the Union Pacific Railway Company, where it has offices, precisely as it would be the duty of the Union Pacific Railway Company to do if such messages were transmitted by it for an individual; and secondly, the receipt by the Union Pacific Railway Company at any of its telegraph offices of any and all messages which would bear upon their face any indication that they are to be transmitted and delivered to the Baltimore and Ohio Telegraph Company at any other point where the Union Pacific Railway Company may have a telegraph office, and the delivery of such messages to the Baltimore and Ohio Telegraph Company at such points precisely as if the Baltimore and Ohio Telegraph Company were an individual then present, at such point and on the same conditions. Now, shall I go further?

The COMMISSIONER. I want you to put it in your own way, with the desire that you will fully answer the proposition as you understand it.

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*

Mr. SWAYNE. I will state further the position and duty of the Union Pacific Railway Company. The duty of that company does not extend to making-I will stop there; I think that is plain enough. I have telegrams here that ought to go, in regard to Senator Gorman's resolution, calling on the Secretary for information as to whether the Union Pacific Railway Company and other land-grant railroad companies have constructed and are maintaining and operating their own lines of telegraph, &c. I will read them: "In regard to the resolution of Senator Gorman, we say that the Union people own and operate a telegraph line exclusively its own, &c. The telegraph line was built under provision of the Idaho act of June, 1864. Referring to Senator Gorman's resolution calling on the Secretary for certain information in reference to the Union Pacific property, the Union Pacific owns and operates exclusively its own line of telegraph. Under the decision of Judge Miller and the Supreme Court of the United States "-I guess I won't put them in. I thought they had some bearing on this question, but I find they have not. I won't put them in. The COMMISSIONER. In the Kansas Pacific case, does it not appear (Î ask the question because I may not have read it with sufficient care)-does it not appear that the Western Union put up three wires, of which one was to be in the exclusive control of the Kansas Pacific Railway?

Mr. SWAYNE. To be in their exclusive control for railroad, not commercial, busi

ness.

Mr. WILSON. Now, of course, it is very plain to be seen that here are two rival telegraph companies going to compete with each other and all that sort of thing, and a resolution is introduced in the Senate calling upon the Railroad Commissioner for cer

tain information in regard to the Union Pacific Railroad Company. Now, I would like to know, and I would like to have Mr. Bates state, when and where and wherein the Union Pacifie Railroad Company has been in any way in default towards the Baltimore and Ohio Telegraph Company. I should like to know just what his grievance is against the Union Pacific Railroad, so that we may have an opportunity to answer it. We know perfectly well that the answer to this resolution will go back to the Senate, and the resolution will be there acted upon, then go to the House, and all this will be used by the papers of the country to the disadvantage of the Union Pacific Railroad Company, and that is what I want to protect here if I can; and if Mr. Bates or anybody else has any special grievance against the Union Pacific Railroad Company, or insists that the company has failed in any respect towards the Baltimore and Ohio Telegraph Company or anybody else, I would like to have it stated now, so that we may have an opportunity to answer it, and not be afforded an opportunity when there is no chance to answer.

Mr. BATES. I can only answer the statement of Mr. Wilson by referring to correspondence between your company and the Union Pacific Railway Company, now in possession of the Commissioner, and with which I thought the judge was familiar. Mr. WILSON. I have not seen it, and I know nothing about it.

Mr. BATES. I tried to get from President Adams for six months some kind of information as to the rates at which the Union Pacific would receive our business.

Mr. WILSON. Have you tendered them any business that they have refused to accept?

Mr. BATES. With reference to that correspondence, which speaks for itself, and in view of the conversation that has taken place here to-day, it is my firm belief that the Western Union Telegraph Company is not willing to permit the Union Pacific Railway Company to fulfill its obligations to the public under these statutes to which we have referred.

Mr. WILSON. Allow me to interrupt you. You will see it is not a question so far as the Western Union Telegraph Company is willing to permit the Union Pacific Railway Company to do something, but I am trying to get at what the Union Pacific Railway Company has refused to do.

Mr. BATES. If you have not read the correspondence there is no use in my reciting the facts over and over again. The correspondence is here, and you will understand the situation by reading the same, and it is a complete answer to your inquiry.

Mr. WILSON. State to the Commissioner what it is that the Union Pacific Railroad Company refuses to do.

Mr. BATES. I did so in my opening remarks.

Mr. WILSON. Have you made a tender to the Union Pacific Railroad Company of any business which it has refused to accept?

Mr. BATES. Not being able, up to this time, to ascertain whether the Union Pacific Railway Company has a telegraph office, of course I am not able to tender them any business. What I desire is that the company shall inform me where their offices are so that I may do so.

Mr. WILSON. Have you any line that connects with the Union Pacific line at Omaha or at Kansas City?

Mr. BATES. We do not own a line that connects with the Union Pacific line, but we can use one that reaches it.

Mr. WILSON. Have you ever tendered us business there?

Mr. BATES. As I already answered, we cannot find out whether you have any office there.

Mr. WILSON. You know we have offices at Kansas City and at Omaha.

Mr. BATES. President Adams in his letter fails to give the information. I should like to know it.

Mr. WILSON. How long have you been in the telegraph business?

Mr. BATES. About twenty-six years.

Mr. WILSON. How long were you associated with the Western Union Telegraph Company?

Mr. BATES. Ten or fifteen years, at different times.

Mr. WILSON. How long has it been since you left the employment of the Western Union Telegraph Company?

Mr. BATES. About fourteen months.

Mr. WILSON. And you wish us to understand that you do not know where the Union Pacific offices are, and therefore you cannot tell where they will receive messages?

Mr. BATES. I cannot carry around with me the list of Union Pacific offices, and in order that a general telegraph business may be done with them we necessarily must know where those offices are in detail, so that we may be enabled to get some sort of satisfactory information.

Mr. WILSON. If you have connecting lines now that strike the Union Pacific line, where would they strike the Union Pacific line?