Western Union Tel. Co. v. Louisville & N. R.

65 So. 650, 107 Miss. 626

• Court: Mississippi Supreme Court
• Decided: March 15, 1914
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

Appellant owns and operates a telegraph line extending along the right of way of appellee’s railroad. This telegraph line is maintained by appellant by virtue of a contract entered into by it and appellee. This contract being about to expire, appellant instituted three separate eminent domain proceedings, one in Jackson county, one in Harrison county, and one in Hancock county, for the purpose of condemning a right of way for a new line to be erected along appellee’s railroad in these counties.

Pursuant to the petitions instituted therefor, these eminent domain courts assembled, and judgments were rendered fixing the amount of compensation to be paid by appellant to appellee for the use of its right of way. Prom these judgments no appeal was taken by either party. Some time after these judgments were rendered, and before the expiration of the contract under which appellant was operating its telegraph line along appellee’s right of way, appellee filed the bill herein, praying that appellant be restrained during the pendency of this suit —“from entering upon or using, otherwise than under the existing contract between the complainant and the defendant, any portion of complainant’s said right of way or bridges, hereinabove described, for the purpose of erecting, continuing, or maintaining its telegraph poles, wires, and other appliances and from attaching its poles, wires, or other parts of its line to complainant’s bridges or any part of them, until this cause is finally heard and determined; . . . that at the hearing of this cause, this honorable court will be pleased to decree that the several judgments of condemnation for the use, by the Western. Union Telegraph Company of parts of the right of way of complainant, for the erection by the said Western Union Telegraph Company of its poles, wires, and appliances, and of the right to attach its poles, wires, and other parts of its line to complainant’s bridges or any part of them, to be clonds upon the title of complainant’s right of way, for the several reasons assigned in the foregoing bill of complaint, and that this honorable court will be pleased to decree said several condemnation proceedings, and the said several judgments rendered therein, to be void and of no effect, and that it will permanently enjoin the said Western Union Telegraph Company from entering upon, taking possession of, or erecting any of its wires or other appliances upon complainant’s bridges or to any of them after the termination, by notice or otherwise, of the contract under which it now occupies said right of way with its telegraph line.”

On the filing of this bill a temporary injunction was granted, and thereafter a motion was filed by appellant to—

“dissolve the injunction heretofore granted in this cause against it,-for want of equity on the face of the bill. ’ ’

This motion was by the chancellor overruled, and from the decree so ordering an appeal was granted to this court to settle the principles-of the case.

Section 1856 of the Code provides that the application to exercise the right of eminent domain—

“shall be presented to the clerk of the circuit court of the county, who shall indorse thereon his appointment of a competent justice of the peace of the county in which the property, or some part thereof, is situated to constitute, with a jury, the special court of eminent domain.”

In two of these eminent domain proceedings the appointments of the justices of the peace were not indorsed upon the application, hut were made in writing upon separate sheets of paper and filed with the papers in the cause. This fact, appellee claims, renders these judgments void, because, in the language of its counsel: .

“All of the material requirements of the statute must be literally complied with, and such compliance must appear on the face of the record. ’ ’

The rulé as thus announced is not strictly accurate.

“Every essential prerequisite to the jurisdiction called for by the statute must be strictly complied with, and this must affirmatively appear on the face of the proceedings, in order to give them validity. ’ ’ 15 Cyc. 812; White v. Railroad Co., 64 Miss. 566, 1 So. 730. But “a strict compliance with the statute does not necessarily mean a literal and exact compliance. A substantial compliance will suffice.” 1 Lewis’s Eminent Domain (3d Ed.), sec. 387; White v. Railroad Co., 64 Miss. 566, 1 So. 730; Darrow v. Railroad Co., 169 Ind. 99, 81 N. E. 1081; Nickerson v. Lynch, 135 Mo. 481, 37 S. W. 128; Charleston v. Comstock, 36 W. Va. 263, 15 S. E. 69; Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292.

The essential requirement of the statute is that the justice of the peace shall be appointed in writing, find the indorsement thereof upon the application is a mere detail to provide for the more effectual preservation of the evidence of the appointment. The indorsement of the appointment of the justice of the peace on the application is not essential to the jurisdiction conferred by the appointment, and a failure of the clerk to indorse the appointment thereon is a mere irregularity, not open to review in this proceeding.

In two of these counties the applications were filed with deputy circuit clerks, who thereupon discharged the duties relative thereto imposed upon the circuit clerks. Section 1006 of the Code provides:

“The clerk of the supreme court, of the circuit court, and of the chancery court shall have power, with the approbation of the court, or of the judges in vacation, to appoint one or more deputies, who shall take the oath of office, and who thereupon shall have power to. do and perform all the acts and duties which their principals may lawfully do.”

It is argued, however, by counsel for appellee that:

“The acts which the deputies are authorized by this section to do are acts relating to the performance of the duties of the clerk of the court virtuti officio, and does not include other acts to be done under special authority conferred upon the clerks by statute.”

This contention was settled adversely to appellee in McRaven v. McGuire, 9 Smedes & M., 34, and McCraven’s Heirs v. Doe ex dem. McGuire, 23 Miss. 100.

Another reason advanced by counsel for appellee in support of the decree rendered in the court below is that:

“Section 929 of the Code of Mississippi, granting to telegraph companies a right to condemn railroad rights of way, when applied to post roads, interferes with the regulation of interstate commerce by Congress and is, for that reason, void.”

The right of appellant to erect and maintain its telegraph line along appellee’s railroad is not derived primarily from section 929 of the Code of Mississippi, but from an act of Congress passed on July 24, 1866 (Act July 24, 1866, ch. 230, 14 Stat. 221), entitled “An act to aid in the construction of telegraph lines, and to secure to the goverment the use of the same for postal, military, and other purposes,” which provides:

“That any telegraph company now organized, or which may hereafter be organized under the laws of any state in this Union, shall have the right to construct, maintain, and operate lines of telegraph 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.

This statute contains no provision conferring upon telegraph companies the right to obtain by eminent domain proceedings a right of way along the line of a railroad company, and it is argued by counsel for appellee that it is beyond the power of the state to confer any such right upon them. This point seems not to have been decided by the supreme court of the United States, but in Western Union Telegraph Co. v. Pennsylvania Railroad Co., 195 U. S. 574, 25 Sup. Ct. 142, 49 L. Ed. 312, 1 Ann. Cas. 517, the court, in holding that the telegraph company had no right under this statute to appropriate any portion of the railroad company’s right of . way without its consent, referred to the fact that “it is admitted that the statutes of New Jersey (the state in which the litigation arose) do not confer the right of eminent domain upon the telegraph company.” The power of a state, however, to confer such a right upon telegraph companies to be exercised by them in making effective the right conferred upon them by the act of Congress here in question has been upheld in several cases decided in Federal, district and circuit courts. Postal Telegraph & Cable Co. v. Southern Railroad Co. (C. C.), 89 Fed. 190; Postal Telegraph & Cable Co. v. Cleveland, etc., R. R. Co. (C. C.), 94 Fed. 234; Postal Telegraph & Cable Co. v. Oregon, etc., R. R. Co. (C. C.), 104 Fed. 623; Postal Telegraph & Cable Co. v. Oregon, etc., R. R. Co. (C. C.), 114 Fed. 787; Georgia R. R. Co. v. Telegraph Co. (C. C.), 152 Fed. 991; Western Union Telegraph Co. v. L. & N. R. R. Co. (D. C.), 201 Fed. 946.

Several of these cases were reviewed in Western Union Telegraph Company v. Pennsylvania Railroad Company, supra, at page 570 of 195 U. S., at page 141 of 25 Sup. Ct., at page 323 of 49 Law Ed., at page 524 of 1 Ann. Cas., and the court pointed out that while the opinions rendered contained language supporting the contention that the right of eminent domain was conferred by the act of Congress in question, that in each of the cases the right was exercised by virtue of the statutes of the state in which the case arose.

We are of the opinion that the state has the power to confer the right of eminent domain here called in question, and that section 929 of the Code is valid.

But it is said that the bill alleges that it is the intention of appellant to maintain its existing telegraph line, and not to erect a new one, and therefore the injunction should be continued for that reason alone; for, conceding that the eminent domain judgments are valid, appellant has no right under the statute to condemn any portion of appellee’s right of way for the purpose of maintaining an existing line, but only for the purpose of erecting a new line. We do not understand the bill to be framed on any such theory. As we understand the bill, one of the reasons assigned for holding the eminent domain judgments void is that appellee’s purpose in obtaining them was to maintain an existing, instead of erecting a new, line. Conceding that appellee’s purpose in obtaining these judgments was as stated, that fact will not render the judgments void. Should appellant seek to use them as a means for maintaining an existing, instead of a new, line, its right so to do can then be determined in a proper proceeding instituted for that purpose.

We are requested by counsel for appellant to dismiss the bill in event the decree of the court below is reversed^ for the reason that ho question of fact is to be determined; the sole ground of the motion to dissolve being the want of equity on the face of the bill. This we cannot do, because the only final judgment which this court can render when a judgment is reversed is such as should have been rendered in the court below, and the court below on the motion to dissolve was without authority to dismiss the bill.

The decree of the court below will be reversed, the motion to dissolve the injunction will be sustained, and the cause remanded.

Reversed and remanded.