S.A. A.P. Ry. Co. v. S.W. Tel. and Tel. Co. , 93 Tex. 313 ( 1900 )

The Court of Civil Appeals for the Third Supreme Judicial District has certified to this court the following statement and questions:

"The appellee is authorized to do business in Texas as a telegraph and telephone company, and is putting in operation a long distance telephone system to and from different towns in the State of Texas. The appellee brought this action to have condemned certain portions of the right of way adjoining the appellant's railway line, for the purpose of planting and erecting its telephone poles, upon which, it appears from the evidence, they propose to place telephone wires for the purpose of operating a long distance telephone system. Electricity is an agent used in the operation of both long distance telephone and electric telegraph lines.

"In connection with the above facts, we certify to the Supreme Court, for its answer, the following questions:

"First. Do the statutes that relate to the exercise of the right of eminent domain in condemnation proceedings conferred upon telegraph companies apply to telephone companies and authorize a like procedure by telephone companies?

"Second. If the above question is answered in the negative, then did the appellee have the right to institute and maintain the condemnation proceedings in question, by reason of the fact that it was also authorized to construct telegraph lines, as well as telephone lines; and in this connection, it is well to state that we find that the line sought to be established and erected upon the appellant's right of way by the appellee was to be used as a long distance telephone line."

To the first question, we answer, yes.

The following articles of the Revised Statutes were enacted by the Legislature in the year 1871:

"Article 698. Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires, and other fixtures along, upon, and across any of the public roads, streets, and waters of this State, in such manner as not to incommode the public in the use of such road, streets, and waters.

"Article 699. Such companies are also authorized to enter upon any lands, whether owned by private persons in fee or in any less estate, or by any corporation, whether acquired by purchase or by virtue of any provision in the charter of such corporation, for the purpose of making preliminary surveys and examinations with a view to the erection of any telegraph lines, and from time to time to appropriate so much of said lands as may be necessary to erect such poles, piers, abutments, wires, and other necessary fixtures for a magnetic telegraph, and to make such changes of location of any part of said lines as may from time to time be deemed necessary, and shall have a right of access to construct said line, and, when erected, from time to time, as may be required, to repair the same, and may proceed to obtain the right of way and to condemn lands for the use of the corporation in the manner provided by law in the case of railway corporations."

At that time, telephones had been recently invented and were not generally known, and it can not be supposed that the Legislature had telephones in mind when it used the word "telegraph;" however, the fact that the telephone was not then in contemplation of the Legislature does not control the construction of article 641, subdivision 8, for, if the language used is broad enough to embrace a subsequently developed method, the later invention might be controlled by the pre-existing law as if it had been in existence at the time the law was made. Attorney-General v. Edison Telephone Co. of London, 6 Q.B. Div., 254, 255.

The term "telegraph" has been held in the following cases to include telephones: Franklin v. N.W. Tel. Co., 69 Iowa 97; The Iowa Tel. Co. v. The Board of Equalization, 67 Iowa 250; Wisconsin Tel. Co. v. Oshkosh, 62 Wis. 32; Duke v. Central N.J. Tel. Co.,53 N.J.L. 341; Attorney-General v. Edison Tel. Co., 6 Q.B. Div., 244; N.W. Tel. Exch. Co. v. Chicago, M. St. P. Ry. Co. (Minn.), 79 N.W. Rep., 315. Each of the cases hold that the word "telegraph" when used in a statute includes the telephone, but the two cases of Attorney-General v. Edison Telephone Company of London and Duke v. The Central New Jersey Telephone Company are the most directly in point.

The former case was based upon this state of facts: In England there were statutes providing that "the postmaster-general is to have the exclusive privilege of transmitting messages or other communications by any wire and apparatus connected therewith used for telegraphic communication or by any other apparatus for transmitting messages or other communications by means of electrical signals." Attorney-General v. Edison Telephone Co., cited above. In that case the court said: "The result of the definition seems to be that any apparatus for transmitting messages by electric signals is a telegraph, whether a wire is used or not, and that any apparatus of which a wire used for telegraphic communication is an essential part is a telegraph, whether communication is made by electricity or not." The telephone company was organized to operate a telephone system in the city of London, and, under the law previously cited, the attorney-general brought an action claiming that it was in violation of the statute of that kingdom, and the question turned upon whether or not the telephone was within the meaning of the act in relation to the telegraph. The court held the telephone to be embraced in the law. That case was very similar in its nature to this; the government was exercising its sovereign power in controlling and appropriating to itself the property of the citizen — the telephone — or, at least, the use of it, as is done in the case of eminent domain where the right of way is taken for the use of the government or by its authority for public use by a corporation or natural person. The same rules of construction, therefore, we think would apply in this case as in that. Upon a very elaborate discussion and philosophical examination of the question, the court held that the term "telegraph" was "wide" enough to include the telephone, and the government was entitled to control its operation within that kingdom.

In Duke v. Central New Jersey Telephone Company, before cited, the telephone company was organized under the general law of the State of New Jersey which authorized the organization of telegraph companies but did not specifically authorize the organization of telephone companies. The company undertook to construct its line and to condemn the right of way therefor. The question arose as to the validity of its incorporation and its right to condemn property. The court, in that case, held that the term "telegraph" as used in the statute, included "telephone," and that the charter granted to a telephone company, under the general law, authorizing the incorporation of telegraph companies, was valid. A statute of that State making the laws regarding "telegraphs" applicable to "telephones" was invoked, but, its validity being questioned, the court disregarded it, and put the decision squarely upon the provisions of the law concerning "telegraph" companies.

Counsel for appellant claim that the Supreme Court of the United States decided, in the case of City of Richmond v. Telephone Company, 174 U.S. 761, that "telephone" was not embraced in the word "telegraph," and that a telephone company was not entitled to the privileges granted by the Act of Congress of 1866, which granted certain privileges to telegraph companies. It is true the court so held, but it was not upon the construction of the words "telegraph" and "telephone," but upon the conclusion reached, that, under the then existing circumstances, Congress did not have in mind the telephone when it enacted the law granting the privilege to telegraph companies, for the reason that at the time the act was passed, telephones were not known to the members of the national legislature. The opinion of the court is, however, pregnant with the thought that if the telephone had then been in common use, the decision might have been different. However that may be, we do not consider that case applicable here.

Upon good authority and sound reasoning, we can safely say that the phrases "magnetic telegraph lines" and "any telegraph lines," found in articles 698 and 699, Revised Statutes, are broad enough to include the "telephone," if the Legislature so intended in the enactment of the statute now in force, authorizing the creation of "telegraph and telephone" corporations. Inquiry is not directed to the intent of the Legislature when articles 698 and 699 were first enacted, but we seek the legislative intent in the year 1891, when the law concerning private corporations was amended by the present provision.

A brief history of legislation upon this subject will aid us in construing the statute now in force. Articles 698 and 699, which grant to telegraph companies the right to condemn right of way for erecting their lines, etc., were enacted as sections 53 and 54 of the general incorporation law first passed at the session of 1871, and afterwards re-enacted in the year 1874. The fifth subdivision of section 566 of the original act provided that a corporation might be formed for "the construction and maintenance of a telegraph line," no mention being made of the telephone. Articles 698 and 699 have remained in force since their enactment as parts of the general incorporation law, and the provision for incorporating a telegraph company, before quoted, continued until the year 1885, when it was amended so as to read, "the construction and maintenance of a telegraph or a telephone line," in which form it continued until the year 1891. It will be observed that in the act last quoted, "telegraph" and "telephone" are not only used disjunctively, but the article "a" is so placed before each as to show distinctly the intent to separate them and to authorize the construction of one or the other, — not both. In the year 1891, the Legislature amended article 566 of the Revised Statutes, and, in the eighth subdivision, authorized the creation of a corporation for "the construction and maintenance of a telegraph and telephone line," which is the law in force at this time.

The change in the form of expression is so marked as to indicate with certainty a change in the policy of the Legislature with reference to telegraph and telephone lines. A change of language in a material respect is held to show an intent to change the meaning of the law. James v. Patten, 6 N.Y. 9; Lehman v. Robinson, 59 Ala. 240; Rich v. Keyser, 54 Pa. St., 89. Between the enactment of the first statute upon the subject and the one last cited a period of twenty years elapsed, during which time great progress was made in scientific development in both telegraphing and telephoning. During this period of time, many of the courts of the land determined, in accordance with scientific opinion on the subject, that the word "telegraph" is a comprehensive term which includes the telephone system. We can see in the changes of the law what progress had been made in the public mind as reflected in these various statutes. At first, the telephone was not mentioned; then the expression was such as to show that the relation between the telegraph and the telephone was not appreciated, perhaps not comprehended at that time by the legislators, and finally that body gave expression to the conclusion reached by the courts that the broader term, "telegraph," includes "telephone," as a method of communication by means of electricity, and, in order to faciliate the construction and use of these aids, we might say necessities, to the business and convenience of the public, the law was so changed that "a telegraph and telephone line" might be constructed and operated, using the one or the other, or both, under the same charter provisions.

The change in the law of 1885 by the amendment of 1891 consists in substituting the copulative conjunction "and" for the disjunctive "or" and in omitting the article "a" after the conjunction; by this change of the sentence, the meaning of the law is manifestly changed so that the words "telegraph" and "telephone," as adjectives, are applied to the one object "line." The structure of this sentence indicates that the Legislature understood that "telegraph" and "telephone" were closely related in meaning, and, in fact, so consistent with each other that the two words were used to express different modes of accomplishing the one purpose, — the transmission of messages by means of electricity.

As the law now stands, it must be construed either to authorize and require of the incorporated company to construct both a telegraph and a telephone system upon one line or that they are expressions of different methods of carrying out the common purpose of telegraphing; that is, that the telegraph includes the telephone system. If we place the former construction upon the sentence, holding that "a telegraph" and "a telephone" are different, when a company organized to construct "a telegraph and telephone line" shall undertake to secure right of way, it can condemn for the use of telegraphic purposes alone, and, being bound, if it erects a telegraph line, to also construct a telephone, the corporation would be without power to use the right of way for the telephone line, because, under that construction, the authority to condemn would be restricted to the "telegraph," and the erection of the telephone upon right of way condemned for a telegraph line would be an additional burden not authorized by law, and the corporation would be without power to acquire right of way for a telephone, without which it could not conduct its business. This would be an absurd consequence which shows the construction not to be legitimate. The interpretation which confers upon telephone corporations the rights granted to telegraph corporations harmonizes every provision of the law upon the subject of telegraph and telephone, and is consistent with the well known history of the times in which these statutory provisions were evolved.

We conclude, that, when the Legislature of 1891 enacted the law in its present form, it intended to express that "telephone" was within the broad meaning of "telegraph," and that corporations formed under subdivision 8 of article 641, Revised Statutes, are "created for the purpose of constructing and maintaining magnetic telegraph lines," and are authorized by article 699 to condemn right of way for their lines.

Article 745, Revised Statutes, requires foreign corporations to procure permits to do business in this State, prescribing what they must do to procure the permits, and, with reference to such as may comply, enacts, "such corporations, on obtaining such permits, shall have and enjoy all of the privileges conferred by the laws of this State on corporations organized under the laws of this State." Thus the State adopts the foreign corporation upon the terms stated in the law and makes it equal to domestic corporations. Language could not be more comprehensive and is ample to embrace the right of condemnation. It would be a mockery to give the corporation permission to construct and maintain "a telegraph and telephone line" and, at the same time, deny to it the use of the only means by which it could exercise the privilege granted.