Telephone Co. v. Fehring. companies as common carriers. It was proper to name in the title the common carriers covered by the provisions of the act. This act, therefore, embraces but one subject, that of regulating a certain class of common carriers and matters properly connected therewith, and is not invalid for the reason urged. It is next insisted that the complaint does not state a cause of action, within the meaning of said section 2, p. 151, Acts 1885 (section 5529, Rev. St. 1894). The allegations show, among other things, that appellant at the time stated owned and operated a general system of telephone lines in the city of Columbus, Ind.; that appellee had one of the appellant's telephones in his drug store, and, desiring to converse with another patron of appellant, called upon the exchange, and asked to be connected with said other patron, which connection was refused by appellant. Appellant urges that the section upon which appellee predicates this action applies to discrimination between applicants for telephones, not to discrimination between patrons of a telephone company. In other words, appellant's contention is that the act requires telephone companies to furnish an instrument, and connect it with its exchange, when applied for, without discrimination, but when this is done, the duty of the company to such person under the act ceases, and that no penalty can be recovered under said act or a refusal to furnish the connection and facilities by which he can use the instrument. We think it clear that, under the provisions of the section in controversy, telephone companies are not only required to furnish an applicant the instrument, and properly connect the same with its exchange, but it is also their duty to supply all the connections and facilities necessary to the use of such instrument. The section provides that "every telephone company . . . shall, within the local limits of said telephone company's business, supply all applicants for telephone connections and facilities with such connec United States v. Railway & Telegraph Cos. tions and facilities, without discrimination or partiality. Merely furnishing an applicant with an instrument, and connecting the same with the exchange, is not a compliance with this statute. This alone would not enable such person to use the telephone instrument. After the telephone instrument was furnished appellee, and connected with the exchange, it was the duty of appellant each time, when requested by appellee, to make such connection as would enable him to converse with the person named, without discrimination or partiality; and, for a refusal so to do, appellant became liable to appellee, as provided in said act. The court did not err, therefore, in overruling the demurrer to each paragraph of the complaint. NOTE.- The prohibition against discrimination by telephone companies incident to their position as common carriers of intelligence, which was under consideration in the two preceding cases, was also discussed in several earlier cases in this series, which may be referred to in the several indexes, under title, "Discrimination." UNITED STATES V. UNION PACIFIC RAILWAY COMPANY AND WESTERN UNION TELEGRAPH COMPANY. United States Supreme Court, November 18, 1895. (160 U. S. 1.) TELEGRAPH ON RAILROAD RIGHT OF WAY - POST-ROADS ACT ATION STATUTES CONSTRUED. The intention of Congress in enacting the statutes of July 1, 1862 (c. 120, 12 Stat. 489), and July 2, 1864 (c. 216, 13 Stat. 356), was to provide for the maintenance of both a railroad and a telegraph line from the Missouri river to the Pacific ocean, and governmental aid was extended by said statutes in order to accomplish both those results; and the * United States v. Railway & Telegraph Cos. statutes could not be satisfied by the construction and maintenance of a railroad alone. Under the provisions contained in section 19 of the act of 1862, and section 4 of the act of 1864, which made the transfer, under arrangement, of the lines of certain telegraph companies to the roadway of the railroads named in the statutes a fulfilment on the part of said railroad companies of the requirements of the statutes in regard to the construction of telegraph lines, such arrangement and transfer could have no other effect than to relieve the railroad company from any present duty itself to construct a telegraph line to be used under the franchises granted and for the purposes indicated by Congress. It did not affect the authority of Congress, under its power, expressly reserved, to add to or amend the act, to require the railroad company itself to maintain or operate in the future a telegraph line by its officers and employes alone, subject to the limitation that rights actually vested or transactions fully consummated could not be disturbed. The agreement made October 1, 1866, between the Union Pacific Railway Company, Eastern Division, and the Western Union Telegraph Company, having for its evident object the grant to said telegraph company of the exclusive right to control the roadway of the railroad company for telegraphic purposes, to the exclusion of all other telegraph companies, held void, if not at common law as against public policy, then certainly as being in derogation of the post-roads act of Congress of 1866. Certain agreements made in 1869, 1870 and 1881 between the Union Pacific Railway Company and the Western Union Telegraph Company and its predecessor in interest, the Atlantic & Pacific Telegraph Company, held invalid, both as granting exclusive privileges which are forbidden by the post-roads act of Congress, and also as attempting to transfer the telegraphic franchise granted to the railway company by Congress, which it had no power to do. Case of this series cited in opinion, appearing in bold faced type: Pensacola Tel. Co. v. W. U. Tel. Co., vol. 1, p. 250. APPEAL from decree of Circuit Court of Appeals for the Eighth Circuit, reversing a decree of the Circuit Court for the District of Nebraska. Facts stated in opinion. Solicitor-General Maxwell, for appellant. Rush Taggart for the Western Union Telegraph Company, appellee. John E. Dillon, for the Union Pacific Railway Company, United States v. Railway & Telegraph Cos. appellee. John W. Thurston and Jeremiah M. Wilson were on his brief. Justice HARLAN delivered the opinion of the court: This suit was brought by the United States against the Union Pacific Railway Company and the Western Union Telegraph Company under the authority of the act of Congress of August 7, 1888, c. 772, 25 Stat. 382, supplementary to the act commonly known as the Pacific Railroad act of July 1, 1862, c. 120, 12 Stat. 489, and to the act of July 2, 1864, c. 216, 13 Stat. 356, and other acts amendatory of the act of 1862. By the first section of the above act of 1888, it is provided that all railroad and telegraph companies to which the United States has granted any subsidy in lands or bonds or loan of credit for the construction of either railroad or telegraph lines, and which by the acts incorporating them, or by any amendatory or supplementary act, were required to construct, maintain or operate telegraph lines, and all companies engaged in operating such railroad or telegraph lines "shall forthwith and henceforward, by and through their own respective corporate officers and employes, maintain and operate, for railroad, governmental, commercial and all other purposes, telegraph lines, and exercise by themselves alone all the telegraph franchises conferred upon them and obligations assumed by them under the acts making the grants as aforesaid." The second section declares that any telegraph company, having accepted the provisions of Title LXV, Telegraphs, of the Revised Statutes, which should extend its line to any station or office of a telegraph line belonging to any one of the railroad or telegraph companies referred to in the first section, shall have the right and shall be allowed "to connect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient United States v. Railway & Telegraph Cos. interchange of telegraph business between said companies; and such railroad and telegraph companies, referred to in the first section of this act, shall so operate their respective telegraph lines as to afford equal facilities to all without discrimination in favor of or against any person, company or corporation whatever, and shall receive, deliver and exchange business with connecting telegraph lines on equal terms, and affording equal facilities and without discrimination for or against any one of such connecting lines; and such exchange of business shall be on terms just and equitable." If any railroad or telegraph company referred to in the first section, or any company operating such railroad or telegraph line, refuses or fails, in whole or in part, to maintain and operate a telegraph line as provided in the act of 1888 and the acts to which it is supplementary, "for the use of the government or the public, for commercial and other purposes, without discrimination," or refuses or fails to make or continue such arrangements for the interchange of business with any connecting telegraph company, then, by the third section, application for relief may be made to the Interstate Commerce Commission, whose duty it shall be to ascertain the facts, and prescribe such arrangement as will be proper in the particular case. The fourth section is in these words: "In order to secure and preserve to the United States the full value and benefit of its liens upon all the telegraph lines required to be constructed by and lawfully belonging to said railroad and telegraph companies referred to in the first section of this act, and to have the same possessed, used, and operated in conformity with the provisions of this act and of the several acts to which this act is supplementary, it is hereby made the duty of the Attorney-General of the United States, by proper proceedings, to prevent any unlawful interference with the rights and equities of the United States under this act, and under the acts herein |