dissenting.
In view of the importance of these cases I do not feel that any dissent from the opinion and judgment of the court should be expressed, unless the grounds of such dissent be fully disclosed.
The controlling question before the court is, whether the Western Union Telegraph Company is entitled, in virtue of any existing acts of Congress, to keep and maintain its telegraph lines upon the right of way of the Pennsylvania Railroad Company, assuming that the ordinary travel on that road will not be thereby interfered with. .
Congress, haying power to establish post offices and post roads, has declared all railroads in operation within the limits of the United States to be Post Roads and Post Routes. 5 Stat. 271, 283, c. 172; 10 Stat. 249, 255, c. 146; Rev. Stat. § 3964; 23 Stat. 3, c. 9.
There was, for many years, as all know, and therefore as the court may judicially know, a widespread belief that the Government and the people of the country were at great disadvantage in matters of business and intercourse as involved *576in the-use of the telegraph. The conviction was strong and universal that the control of the post roads of the country, was being exerted by great railroad corporations in such way as to subserve private and corporate interests at the expense of the United States and without any regard for the convenience of the general public. As a remedy for those evils Congress passed the act 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.” 14 Stat. 221, c. 230. By that act Congress conferred upon any telegraph company organized under the laws of any State “the right to construct, maintain and operate lines of telegraph,” not only through and aver the public domain and over, under or across the navigable streams or waters of the United States, but “over and along any of the military or post roads of the United States.” By the same act it is declared that on the lines of such companies telegraphic communications between the several departments of the Government should be at rates to be annually fixed by the Postmaster General, and have priority over all other business. § 2. To the exercise of the right thus given, Congress annexed several conditions, but the only one pertinent to the present discussion is the condition that the telegraph lines erected by any company accepting the provisions of the' act should be .so constructed and maintained as not to obstruct the navigation of the navigable streams and waters of the United States or “interfere with the ordinary travel on such military or post roads.”
The object of the act, this court has said, all its members concurring, “was not only to promote and secure the interests of the Government, but to obtain, for the benefit of the people of the entire country, every advantage, in the matter of communication by telegraph, which might come from competition between corporations of different.States;" that “it was very far from the intention of' Congress, by any legislation, to so exert its power as to enable one telegraph corporation, Federal. *577or state, ... to acquire exclusive rights over any post road;” and that “no railroad company, operating a post road of the United States, over which interstate commerce is carried on, can, consistently with the act of July 24, 1866, bind itself, by agreement, to exclude from its roadway any telegraph company, incorporated under the laws of a State, which accepts the provisions of that act, and desires to use such roadway for its line in such manner as will not interfere with the ordinary travel thereon.” United States v. Union Pacific Railway Company & Western Union Telegraph Company, 160 U. S. 1, 44, 49. Yet, by its present construction of the act of 1866 the court — if we do not misapprehend its opinion — holds that the right which that act gives to construct, maintain and operate a telegraph line upon a post road cannot, in virtue of that act, or under any existing legislation, be exercised by the Western Union. Telegraph Company, against the will of the railroad company operating such road; and this, notwithstanding it be absolutely clear that the occupancy of the post road by the telegraph lines of the particular company proposing or desiring to erect them would not, in the slightest degree, interfere with the ordinary travel on such road. It is now held, in effect, that, so far as that act is concerned, and despite its explicit provisions, even the Government cannot, except with the assent of the Railroad Company, enjoy the advantages sought to be secured by its passage. I think it was intended by the act of 1866, in the interest of the postal service and of interstate trade and intercourse,"to throw open all the post roads of the country to the use of telegraph companies accepting its provisions, subject to the condition that such use should not interfere with ordinary travel on the post roads so occupied. And that intention is in harmony with the doctrine often announced by this court, that “a railroad is a public highway, established primarily for the convenience of the people, and to subserve public ends, and, therefore,- subject to governmental control.” Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S, 641, 657; Olcott v. Supervisors, 16 *578Wall. 678, 694; United States v. Joint Traffic Association, 171 U. S. 505; Wisconsin &c. R. R. Co. v. Jacobson, 179 U. S. 287.
But it is suggested that the Telegraph Company has not been expressly invested with the power of eminent domain. Nevertheless, it has been given, by express words, the right to construct, -maintain and operate its lines on any post road of the United States; and as it is not “contended that Congress has exceeded its power in granting that right the question is whether the right so given can be made effective by any mode of procedure known to our jurisprudence. I have always supposed it to be competent for a court of the United States, having general 'jurisdiction of suits at law and in equity, in some efficient mode, by some process or form of procedure, to enforce and' protect any right constitutionally conferred by the legislative department. The principle is illustrated in Osborne v. Missouri Pacific Railway Company, 147 U. S. 248, which was an action to enjoin the construction of a track along a public street, because of irreparable damage to be thereby inflicted on the plaintiff. This court, following the decision of Judge Brewer, now of this court, in McElroy v. Kansas City, 21 Fed. Rep. 257, said (p. 249): “If the defendant had an ultimate right to do the act sought to be restrained, but only upon some condition precedent, and compliance with the condition was within the power of the defendant, the injunction would almost universally be granted until the condition was complied with; but if the means of complying with the condition were not alt defendant’s command, then the court would adjust its order so as to give complainants substantial benefit of the condition, while not restraining defendant from the exercise of his ultimate rights. Inasmuch as, while the statutes of Missouri provided for the assessment of damages resulting from the taking of property for public use, there existed no provision to attain that result where the property was merely damaged, an injunction was granted, with leave to the defendant to apply for the appointment of a board of commissioners to ascertain and. report the damages which complainant would *579sustain, upon payment of which- the injunction' would be vacated.” This principle was recognized in the recent case óf New York City v. Pine, 185 U. S. 93.
It is said by counsel that- the right given by the act of 1866 is necessarily subject to the condition prescribed by the constitutional provision that private property shall not be taken for public use without just compensation, and that the property interest of the Railroad Company in its right of way cannot be permanently taken from, it for public purposes, against its will, without making such compensation.
Upon the subject ot compensation the court reproduces from the opinion in Sweet v. Rechel, 159 U. S. 380, 399, this detached sentence: “It is a condition precédent to the exercise of such power [eminent domain] that the statute make ■ provision for reasonable compensation to the owner.” But the court doqs not apply any such rule to the present case and holds that the act of 1866 is invalid as not making provision for compensation. Besides, the above sentence taken in connection with the one immediately preceding it shows clearly that what was said had reference to the taking of private property for public use without provision being made in the statute for compensation. The entire paragraph from which the above sentence was taken reads: “When, however, the legislature provides for the actual taking and appropriation of private property for public uses,' its authority to enact such a regulation rests upon its right of eminent domain — a right vital to the existence and safety of the Government. But it is a condition precedent to the exercise of such power that the statute make provision for reason- • able compensation to the owner.” .What was said in Sweet v. Rechel plainly had no reference to property of a public or quasi-public nature.. The same observations may be made in reference to the quotation made from Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641. What was said in that case had also: reference to the taking of «private property. If the court were now of opinion that the act of 1866 was invalid as *580not making provision for compensation, then the object of citing Sweet v. Rechel and Cherokee Nation v. Kansas Railway would be both manifest and appropriate. But the court does not hold that the act of 1866 is objectionable on any such ground. On the contrary, it holds a railroad right of way to be private property, and yet, despite its citation of the above cases, recognizes the validity of the act, although it makes no provision for compensation to the owner. It may not be appropriate for me to say that I adhere to what was said in Sweet v. Rechel and Cherokee Nation v. Southern Kansas Ry. Co., the opinions in both of which cases were written by myself, speaking ■for the court. Whether a railroad right of way over a post road of the United States — such road being a public highway established primarily for the public convenience and subject to governmental' control — is private property within the rule that a statute authorizing private property to be taken for public use must make, provision for compensation, is a question not wholly free from doubt, and it need not be, here discussed; for, the court does not hold that the act of 1866 is subject to that objection.
But let it be granted, for the purposes of this case, that a railroad company has such a property interest in its right of way that it is entitled to compensation, if such right of way be appropriated to the use of a telegraph company, accepting the act of 1866; still, the question remains in what way ór by what mode may such compensation be legally ascertained? May it not be ascertained by a court of general jurisdiction, when all parties in interest are regularly being brought in? Here the Telegraph Company comes into the Circuit Court of the United States and seeks, in virtue of the act of Congress, to enforce the right expressly granted to it of occupying • the post road in question with its lines. It expresses its readiness to make such compensation to the Railroad Company as the law requires, and informs the court that it has instituted an action at law to ascertain the amount of such compensation. Thé bill alleges:
*581“Your orator says further that it is diligently prosecuting said action on the law side of this court for the ascertainment of the amount of compensation to the said railway companies defendant herein, for the right to the use of said railroads to maintain and operate its telegraph line along and over the lines of said railways as prescribed in said act of Congress of July 24, 1866; and that it will continue to prosecute the same to a final determination as rapidly as the business in said court will permit the said cause to he heard and determined and without any unnecessary delay.
“Yo.ur orator prays that this court ascertain, order, adjudge and decree the amount of compensation to be paid by your orator to the defendants, as their rights may severally appear, for the construction, maintenance and operation qf your orator’s telegraph lines over and along the right of way of the defendants’ said railroads, under the terms, provisions and restrictions of said acts of Congress hereinbefore mentioned, or, if this court shall order and determine that the' amount of such compensation to the defendants shall be such amount as shall be determined or adjudged in the said action at law, that upon due payment of such compensation by your orator to thé defendants this court will order, adjudge and decree that your orator is entitled to a perpetual injunction against the defendants herein and each of them, restraining them and each of them from in any manner interfering with the location, construction, maintenance and operation of your ■orator’s said lines of telegraph upon the roadway or right of way of the said defendants, under and subject to the provisions and restrictions of the said act of Congress of July 24, 1866, and meanwhile and until the final decree of this court that a temporary injunction be issued against ohe defendants, prohibiting and • restraining them and each- of them from in any ..manner interfering with the use and operation of the telegraph lines of your orator upon the said roadway and right of way of the defendants pending the determination of the said action' at law, or until the further order of this court in the premises.' *582And for such other and further relief as the case may require and to your honors may seem just.”
Kohl v. United States, 91 U. S. 367, was an application filed in pursuance of acts of Congress authorizing and directing the Secretary of the Treasury to purchase a site for a public building. A site was selected, but thq Secretary and private owners could not agree as to price, and the acts of Congress did not direct the particular mode by which the land should be condemned and the compensation to be made by the Government ascertained. The Secretary of the Treasury, in order to carry out the will of Congress, did not institute formal proceedings of condemnation as one of the acts, under which he proceeded, authorized him to do. But he instituted a suit in a Circuit Court of the United States to appropriate a certain parcel of land for the proposed building. ' It was objected that the Circuit Court was without jurisdiction, but that objection ■ was overruled. It was contended in argument that while the United States had the right of eminent domain, Congress had not given to the Circuit Court jurisdiction of a proceeding for the condemnation of property brought by the United States in the assertion or enforcement of that right; and that the act of Congress meant that the land for the proposed public building was to be obtained under the authority of the state government in the exercise of its right of eminent domain. It was further contended that if the proceeding was properly instituted in the Circuit Court, then the act of Congress required that it should conform to the provisions of the state law in a like proceeding in the state court. This court said (p. $75): “Doubtless Congress might have provided the mode of taking the land, and determining the compensation to be made, which would have been exclusive of all other modes. They might have prescribed in what tribunal or by what agents the taking and the' ascertainment of the just compensation should be accomplished. The mode might have been by a commission, or it might have been referred expressly to the Circuit Court; but this, we think, was not necessary. The investment of the *583Secretary of the Treasury with power to obtain the land by condemnation, without prescribing the mode of exercising the power, gave him also the power to obtain it by any means that were competent to adjudge a condemnation (p. 376). . . It is quite immaterial that Congress has not enacted that the compensation shall be ascertained in a judicial proceeding. That ascertainment is.' in its nature at least quasi-judicial. Certainly no other mode than a judicial trial has been provided. . . . But there is no:special provision for ascertaining the just compensation to be made for land taken. That is left to the ordinary processes of the law; and hence, as the Government is a suitor for the property under'a claim of legal right to take it, there appears to be no reason for holding that the proper Circuit Court has not jurisdiction of the suit, under the general grant of jurisdiction made by the act of 1789.”
In United States v. Jones, 109 U. S. 513, which was a proceeding to condemn property for theuse of the United States, this court, referring to a certain proposition advanced by counsel, said (pp. 518, 519): “There is, in this position, an assumption that the ascertainment of the amount of compensation to be made is an essential element of the power of appropriation; but such is not the case. The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Boom Company v. Patterson, 98 U. S. 106, requires, no constitutional recognition.. The provision found in the Fifth Amendment to the Federal Constitution, and in the constitutions of. the several States, for just compensation for the property taken, is merely á limitation upon the use of the power. It is no part of the power itself, .but a condition- upon which the power may be exercised: . . . But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property. There is nothing in the nature of the matter to be determined which calls for the establishment of any special tribunal by the *584. appropriating power. The proceeding for the ascertainment 'of the value of the property and consequent compensation to. be made, is merely cm inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with\ opportunity to the owners 'of the property to present evidence as to its value, and to be heard thereon.”
• The vital object of the present suit was to secure the recognition and enforcement of the right of the Telegraph Company, under the act of 1866, to keep and maintain its lines upon the railroad’s right of way. If it had such right — the authority . to confer the right is, we repeat, not disputed — then this suit in equity was an appropriate mode by which the right could be adequately protected and compensation secured to the railroad company. To assert the right and'to ask that the amount of compensation shall be ascertained made the proceeding a suit or controversy within the meaning of the judiciary acts, and made .the case one — in legal effect — for condemnation. I perceive no reason why the court, in advance of a final decree recognizing and enforcing that right, could' not have instituted, as it was asked to do, an inquiry in respect of the compensation which the Railroad Company was entitled to receive for the proposed use of its right of way, and have'made the payment of such compensation a condition precedent to the exercise by the Telegraph Company of the right given by the act of 1866. ' Having all the parties interested before it, could not the court. have directed a jury to be impanelled to inquire, under the direction of the court, as to. the amount of compensation to be paid to the Railroad Company? Could it have done any more under regular proceedings of condemnation? Instead of adopting that course, the Circuit Court proceeded upon the ground ' that even if the use of the defendant’s road by the Telegraph Company would not interfere with ordinary travel on and *585over it, it was compelled by the former decisions of this court to hold that neither in virtue of the act of 1866, nor of any other exising Federal statute, could the Telegraph Company occupy the railroad’s right of way without the consent of the Railroad Company.
The cases in this court which, it is supposed, adopted this view of the act of 1866 are Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, and Western Union Tel. Co. v. Ann Arbor R. R. Co., 178 U. S. 239, 243. But.the utmost ingenuity is inadequate to show that the present question was involved in either of those cases, or that the decision in either case depended in the slightest degree on its solution.
It appears from the Pensacola case that the Western Union Telegraph Company had the right to place and operate its lines upon the right of way of a certain railroad company between points in Alabama and points in Florida. There was no .controversy in that case between the railroad company and the telegraph company as to the right of the latter to have its linés on the railroad right of way. The railroad company, as the report of the case shows, had consented to the occupancy of its right of way by the lines of the Telegraph Company, and that fact was not disputed. The railroad company was not even a party- to ■ the suit. It had no quarrel with the telegraph company. What need, then, had the court -to consider the rights of the Western Union Telegraph Company, under the act of 1866, when it was conceded that that company had the consent of the railroad company to occupy its right of way? This view of the case was distinctly announced by this court when it said in the Pensacola case that “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 [the telegraph’s] usefulness.” The sole question in the case .was as to the validity of a Florida statute,- under which a Florida telegraph company was given exclusive telegraphic rights over the route to be occupied by the Western Union Telegraph Company with the consent of the railroad *586company; and the charter of the Florida company authorized it to locate and construct its lines'within certain named counties of Florida “along and upon any public road or highway, or • across any water, or upon any railroad or private property for which permission shall have first been obtained from the proprietors-thereof.” This court held that the attempt of the State to exercise exclusive control ovér telegraphic communications between it and other States was in conflict with the commerce clause of the Constitution of the United States, and that the Florida statute was ¡'void, so far as it assumed to grant exclusive privileges to a particular telegraph company.
Referring to the act of 15(66 the court said (p. 11): “It substantially declares, in the interest of commerce and the convenient transmission of intélligence 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 ^nter upon'private property without the consent of the ;'¿wner and erect the necessary structures for its business; but ; it does provide that, whenever the consent of the owner is ob- ' 'tamed, no stkte legislation- shall prevent' the occupation of ‘ ,post roads for telegraph purposes by such corporations as are . ) willing to aVail themselves of .its privileges.” What was meant by the words, “ but it [the act] does provide that, whenever the consent of the owner-is obtained,” I cannot understand. The¡ act of 1866 does not contain any such- provision nor anything like' it. Not a single word is to be. found in it ■ *587that refers to the .consent of the owner of the property to bé taken. The court proceeds: “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 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.”
This language, it seems to me, has not been correctly interpreted. Undue stress has been laid upon the words “private property without the consent of the owner,” and the words “private property. . . . obtained by private arrangement with its owner.” They have been so interpreted as to make the court decide a question not before it, not necessary to the decision, not involved in the isuses made, and never suggested by counsel. The briefs of counsel in that case show that no such question was in their minds; for they as well as the court knew, from the record before them, and as we may know from an examination of that record, that the Western Union Com*588pany was entitled, so far as the consent of the railroad company was concerned, to maintain its lines on the railroad right of w¡ay. • Upon the above quoted words the contention is based that the court intended to decide that no railroad right of waj' could, in virtue of the act of 1866, be occupied by any telegraph company without the consent of the railroad companj^ first 'obtained. I cannot believe that any such question was int'ej^ded, to be decided. As already shown, the coúrt expressly said that the only question to be decided was whether Congress had power to prevent a State from obstructing interstate telegraphic 'communications, by granting exclusive privileges to a particular telegraph company of its own creation. It is a mistake to say that the court declared that the sole purpose of the act of 1866 was to prevent state monopolies, or that the act was nierely an exercise of national power to forbid state interference with telegraphic communications. It did say that the case then before the court would be satisfied if the , question as to state interference was decided, that is, that the case involved no other question. Besides, the whole context of the opinion in the Pensacola case shows that the court did not include railroad property employed in commerce when it used, the above quoted words. It was argued in that case that the act of 1866 had reference only to the “public domain,” that is, to the public lands owned by the United-States. This view was distinctly rejected, and post roads were placed by the court, so far as the privileges granted the act were concerned, on the "¿ame plane as the public- domain, so that not even a State could interfere with the national privilege granted by Congress, if the telegraph company'accepted the terms of the act. The court said that any telegraph company, accepting the provisions of the act, could put its lines on any post road, if ordinary travel thereon was not interfered with, and that not even the State could stand in the way. It then added, as if out of abundant caution, and to show that Congress had no purpose to interfere with the rights of private owners, that no attempt was made by Congress to provide for *589the appropriation of private property, and that “the use of public property alone is granted.” Thát meant that the act had not granted any right to telegraph companies to occupy private property with telegraph lines. Having said that the act granted the u^se of post roads for telegraphic purposes; that it embraced the use of such roads equally with the public domain; and that “the use of public property alone is granted,” it is inconceivable that the court employed in the same connection the words “private property,” as embracing post roads, or the use of such roads. To relieve the minds of those who apprehended danger arising from the act of 1866 to state sovereignty and to rights that were strictly private, the court took care to say that neither state sovereignty nor private rights were' interfered with; that only national privileges were granted; but that, in respect of the use of the public domain and military and post roads, Congress had power to pass the act of 1866, and in dealing with the use of post roads, by telegraph companies, it dealt with public property.
When the court held in the Pensacola case that telegraphic communications between the States could be regulated by Congress under its power to' regulate commerce, and that the statute of Florida, which assumed to give to a Florida telegraph company an exclusive right in respect of telegraphic communications over certain territory in that State, was inconsistent with the act of T866, that was an end of that case, and nothing remained to be done, except to dismiss the suit. The court itself so declared. Nothing more was in issue between the parties. The case involved, I confidently insist, no question as to the previous assent of the railroad company being a condition of the exercise by the Western Union Telegraph Company, of the' rights given by the act of 1866.
Nor is the case of Western Union Tel. Co. v. Ann Arbor R. R. Co., 178 U. S. 239, 243, 244, an authority for the action of the Circuit Court. That was a case in which the only relief sought was the specific performance of a contract under which a telegraph company claimed the right to remain in the occupancy *590of the right of way of a railroad company. The court pertinently' observed in that case that it was not claimed that “ the telegraph company had any right under the statute, and independently of the contract, to maintain and operate this telegraph line over the railroad company’s property.” It was, however, claimed that as thé telegraph company was in the discharge of public duties, the Circuit Court “should have so framed its decree as to preserve the occupancy of the telegraph company, subject to making compensation to the railroad company, the value of the, alleged easement, to be ascertained by the court.” But that view was rejected because the bill “.was not framed in that aspect,” and so as to protect the occupancy of the telegraph company subject to the condition .of. its making compensation, and the court also said that the relief asked could not. be given under the prayer for general relief, because not “agreeable to the case made by the bill.”
Now, the present bill has been framed so that the court can protect the right given to the Telegraph Company by the act of 1866" to have its wires and poles on the-company’s right of way, upon its being ascertained that such use will not interfere with the ordinary-travel on the'-railroad, just compensation being made for that use, and the amount of compensation to be ascertained by the court in some appropriate way.
■ In my judgment, nothing involved or in judgment in the Pensacolas and Ann..Arbor cases requires the affirmance of the decree of the Circuit Court.
The affirmance of that decree of the Circuit Court will mean that the efforts of Congress-, by the act of 1866, to obtain for "the ■ people of the country the advantages accruing from competition between corporations of. the different States in -the matter of- telegraphic communications, and also to promote and secure the interests of the Government as involved in the conduct of its postal arid military business, will prove of but "little value. Indeed, as construed, it might have been better for the country if the act of 1866 had not been passed, and the States left free to establish such regulations in refer*591ence to telegraphic communications, within and over its territory, as would be appropriate and valid in the absence of; Congressional legislation on the subject. As the matter now stands, the whole subject is practically committed to- the ' railroad companies. The codrt says that the act of 1866 is" an efficient enactment for the purpose of preventing state interference with interstate telegraphic communications. As now construed, it would seem to be most efficient in tying;the hands of the States and leaving railroad companies operating post roads, so far as existing legislation is concerned, absolute masters of interstate communication by telegraph.
In the Pensacola case it was decided, and I think rightly, that in respect at least, of interstate telegraphic communications, a State could not give exclusive privileges to a particu- • lar telegraph company. But, as just stated, by the necessary operation of the judgment now rendered a railroad company, operating a post road, can, in effect or practically, confer exclusive privileges upon a particular telegraph company, in respect of its right of way, by simply withholding its consent for a second telegraph company to occupy any part of such right of way with its wires and poles. If the Government should be of opinion that the public business imperatively required another telegraph line upon the post road now ■ occupied by the Pennsylvania Railroad, that company need only'object to other telegraph lines being placed upon its right of way, and that will be the end of the matter, so far-as the .act of 1866, as now construed, is concerned. If the Government,-and a telegraph company fully equipped, should . jointly represent to the railroad company that an additional company can be admitted to its right of way without obstructing the ordinary travel on that road, the company need only reply that no other telegraph company than the one now. there can occupy its right of way, and that will' be the end of the matter, so far as the act Of 1866, as now construed, is concerned. All this is'now made possible, notwithstanding the decision of this court in United States v. Union Pacific Rail*592way, 160 U. S. 1, above cited. In that case we propounded this question, p. 44: “Can it be said that after the passage of the act of 1866, and while it was in force, a railway company, operating a post road of the United States, could, by any form of agreement, exclude from its roadway a telegraph company which had accepted the provisions of that act?” We said that this question could be answered only in one way, “namely, that every railroad company operating a post road in the United States, over which commerce among the States is carried on, was inhibited, after the act of July 24, 1866, took effect, from making any agreement inconsistent with its provisions or that tended to defeat its operations.” The court added that it was very far from the intention of Congress by any legislation to so exert its power as to enable one telegraph corporation,. Federal or state, to acquire exclusive rights over any post road. But now, a railroad corporation operating a post road, and wishing its right of way occupied-only by a single company, with which it may have a special business arrangement, for its own purposes, need not make even a secret agreement granting exclusive privileges to that company. It need only keep silence and withhold its assent to the occupancy of its right of way by another company, and in that way give exclusive privileges to the company with which it has a special arrangement; it may be to one organized wholly in the interest of the railroad company. In the Pensacola case it was said that one of the objects of the act of. 1866 was to prevent state monopolies in telegraphic communication, and that the privilege granted by that act was a. national privilege. Now, although state monopolies cannot exist, railroad monopolies in telegraphic communications may exist; and the national privilege granted by the act of 1866 is left at the mercy of railroad companies operating the post roads of the United States.
Practically, the railroad corporations operating post roads —looking to their own interests and perhaps caring little for the general welfare — are recognized as now having more power *593f.han a State. I cannot assent to any interpretation of the act of 1S66 from which such a result can follow. No such result is, in my opinion, consistent either with the words of the act or with the objects which Congress, as this court has said, intended to accomplish by its passage. The act, reasonably interpreted, was, I think, intended to give a telegraph company accepting its provisions the absolute right to put its wires and poles upon any post road — a public highway established primarily for the public convenience — if the ordinary travel on such road was not thereby interfered with.
■ For these reasons, I am constrained to dissent from the opinion and judgment of the court.