UNITED STATES V. UNIoN PAC. RY. CO.
221
consist oftwo one-foot walls, each built bya different contractor, and, it may be, at different tiIlles, touching one another only, but not constructed or bound together as one. Again, would the addition to the inside of the pier be built in as the pier is constructed, or built up on the outside afterwards? Unless the contractors came to an agreement, the latter course would have to be pursued, to the probable injury of the structure. From those imperfect suggestions it is easily seen that it is utterly impracticable to let the contract for such work or material as may be found necessary or desirable in the progress of construction to the lowest bidder. l'he statute does not require it, but leaves the matter to the " discretion" of the county court, where it properly belongs. In conclusion, the county court of Clackamas county was authorized to contract with the plaintiff for this extra work and material, and hIlS duly done so, as appears by the entry in its record of county business. But, no price having been agreed on for the same, so far appears from said record, the plaintiff is entitled to have, and the defendant is bound to pay, the reasonable value thereof. .The demurrer is overruled, and it is so ordered.
UNITED STATES V. UNION PAC.
Ry. Co. et al.
(Oircuit Court, S. D. New York. February 16, 1891.) TBI,EGRAl'JJ COMl'ANIEs-GoVERNMENT MESSAGES.
. . Aet Congo 1862, (1281;, at Large, 489,) granting. land and bonds to defendant rail· . way company, provided (section 6) that the company should construct and keep in repair a line, "and that the government should at all times have the preference in· the use of the samEl, * * * at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service." .Rev. St. U. S. § 5266,gave certain rights to defendant telegraph company, and prOVided that messages !lent over its lines by the government should" have priQrity overall other business, at snchrates as the postmaster general shall annually fix." Afterwards defendants entered into an agreement for the joint operation of tpeir telegraph lines. The telegraph operators along the line· acted as agents for both the railway and telegraph companies. Held, that where·· a government message, .written on blanks of the telegraph company, was delivered to an operator for transmission, it was to be paid for at the rates fixed by the postmaster general for the entire distance, though they might have been transmitted part of the way by the. railroad telegraph at commercial rates, if the sender had required it.
.
At Law. Edward Mitchell, U. S. Dist. Atty. Artem,/¥ H. Holmes, for the Union Pacific Railway Company. Rush Taggart and J. M. Gwinn, for the Western Union Telegraph
Company·.
a.
LACOMBE, Circuit Judge. .The exhaustive arguments of counsel have covered a much broader field of discussion than seems necessary for the
222 clahn: is for '$12;495.62,-b&ing the ago of money paid by difi'erl:mt officers of t)}le'government to the Western Union Telegraph Company for toe transm'issionof telegraphic messages over the line of the Union Pacific RailroadCon1pany fromCouDcil Bluffs to Ogden, and from Kansas City'to Boaz,. ,The railway company, or its predecessors in interest, whose obligations and liabilities it has assumed, received from the government large grants of land and bonds, under the acts of 1862 (12 St. U. S. 489)and 1864, (13 St. 0. S. 356,)tO aid in the construction and maintenance of railway and·telegraphic lines weet of the Mississippi river.,' ,By 'Vfrttte of section 6 of theaet of 1862 j above named, it:was provided that, in consideration of the graMs of lands and bonds to aid: in the building of railroad and telegraphic lines, the companies receiving the same should (amon.g other things) "keep the telegraph line in repail' and use, and should at all times transmit dispatches over -said telegraph line *' >IF * for' the government whenever required to do so by any department thereof, and that the govermnent should at all times have the preference in the use of the same, * * *at fair and reason.able rates of compensation, not to exceed the an10unts paid by private parties for the same kind of service." All compensation for such services rendered for the government were to be applied to the payment of the bonds and interest until the whole amount was fully paid. By section 15 of the act of 1864, above mentioned, the several companies named (including the defendant railway company's predecessors) were required to use their telegraphlines f6r all purposes of communication, so far as the public and government are concerned, as one continuous line; and the proprietor of any line of telegraph authorized by the act was forbidden to refuse or fail to convey for aU persons requiring the transmission of news and messages. Under these acts it was the duty of the defendant railway company to be prepared at all times with the requisite facilities to carry out these obligations, and to transmit dispatches for the government, whenever required to do so by any department thereof, at the rates provided for. Furtherprovision for securing to the government superior telegraphic facilities was made by congress in the act of July 24,1806, and subsequent actS, (now found in sections 5263-5268 ofthe Revised Statutes,) whereby the use of portions of the public domain, and of materials taken from the public lands, was accorded to any and all telegraph companies organized under state laws for the construcCon, operation, and maintenance of their . lines of telegraph. These privilegeswere con 1erred only on such companies as should file with the postmaster general their written acceptance of the restrictions and obligations required by the act. Among these obligations was that of transmitting government dispatches over their lines at rates to be fixed by the postmaster general. The section reads as follows: determiMtion of the "Sec. 5266. Telegrams between the several departments of the government, and their officers and agents, in their transmission over the lines of any telegraph company which has been given the right of way" timber, or station lands from the public domain, shall have priority over all other business, at such rates as the postmaster general shall annually fix. OJ
UNITED STATEa'" UNION PAC. BY. CO.
223
Prior to' the sending of the dispatches covered by the complaint, the Western Union. Telegraph Company had filed such written acceptance. During all the time covered by the claim of the complaint it maintained and operated (as set forth below) lines of telegraph between Council Bluffs and Ogden, and betweell' Kansas City and Boaz. The postmaster general, from time to time, fixed the rates for transmission of government messages, as provided by section 5266. The amount claimed in the complaint is arrived at by a calculation in which these special rates are employed, and is very much less than it would be if calculated at the ordinary commercial rates prevailing along those lines at that time. At the time. then, that the dispatches which are the subJect of the action were sent, the government was entitled,over the lines above referredJo, to call upon either of these defendant corporations to take and tmnsmit the· same in accordance with the .obligations into which such c()rporations had· entered, in return for government aid. It had its ofagencies. 'rhe defendants do not dispute the proposition that, had the government officer who sent the dispatch required the agent who received it to send it by the railway wires, the provisions of the railway acts, above refel'l'ed to, as to rate and distribution of the proceeds, w9Uld apply. Nol" on the other hand, can it be disputed that, if such officer had delivered the dispatch to the agent of the telegraphcompany for. transmission as a government telegram at the rates fixed by the postmastergeneral, it would. have heen the duty of the telegraph compaIlY to give it priority, and to transmit it at those rates, under the provisions of the telegraph acts. As matter of fact, all of said messages were delive.red to the Western .Union Telegraph Company by the agent or officer ,of the government sending the same, written upon the Western Union Company's blanks, and each one directed to the receiver of suchmessage at the point of destination,and without any direction to .transmit the same over the bonded portion of the line of telegraph of thepnion Paoifio Railway Company for the whole or any part of the distance. The compensation for each of the messages was computedanq paid for, as one entire service, (whether it was wholly, or partly only,over tpe lines from Council Bluffs to Ogden, and from Kansas City to Boaz,) at the)hen ruling rate for such entire distance fixed py the postmaster general. The dispatohes were paid for either by the sender or the receiver, and have been allowed to him upon the settlement of his account. It is claimed by the government, however,that the circumsb\n.ces under which the dispatches were delivered for transmission were such as to entitle.it to claim that the agency chosen for the service was the railway, and not the telegraph, company, and that the former was thps required to transmit them under the terms of its charters. Prior to JqlYl, 1888,thEl Western Union had constructed and was operating continuous telegraph .lines on Or near the road-bed of .the railway company from Counoil Bluffs to Ogden, and w.as also operating continuous lines along or upon the of the railway company from Kansas City to Boaz. Upon July 1,1881, the defendants took to enter into an agreement for the joint operation of all these lines,
224
J'EDERAL REPORTER,
va]. 45.
arid,t>{ the lines constructed by or then operated by the railway company, and during the time covered by the claim of the complaint operated the same in accordance with the terms thereof. Inasmuch as this agreeqlent could in no way alter the obligations which the contracting parties owed to the government under the statutes above referred to, it is not necessary to discuss it'! validity, nor to refer to its terms, save in the following particulars: The persons who were to receive and transmit such messages as might be delivered at the several stations, whether on commercial or on government business, were the employes of the railway company, who thereafter acted as agents for both the telegraph and the railway company. At each receiving station the same individual- ra-ceived the "telegrams between the several departments of the government and their officers and agents," for the transmission of which only the special rates fixed by the postmaster general, under the telegraph acts, were to be charged; and also "the dispatches for the government, whenever required to do so, by the department thereof," which were to be accounted for in the manner prescribed by the railway acts. Each party reservrd the exclusive use of not three wires between Council Bluffs and Ogden, and not exceeding two wires between Kansas City and Denver. (which is beyond Boaz.) There is nothing to show that t:..lder this agreement the railway company disabled itself from fulfillingiti:lobligations under the statutes. It had operators to receive the dispatches it might be required to transmit, and wires by which to transmit them, and could certainly have kept an account of all such. It did not, indeed, keep such account of the dispatches enumerated in the bill.of particulars. But if it appears that the government did not, as between the two systems of telegraphic service, in each of which it had reserved special advantages to itself, make choice of the railway; if it never required the transmission ofthe dispatches in the manner provided . in the railway acts,-the railway company was under no obligation to keep such account. The statute contemplates some act of selection,something which shall require the railway company to fulfill its obligation. No doubt. a formal requisition by a department of the government is not in each' case necessary. The officers and employes of such department may fairly be considered its agents for that purpose, but their acts must go to the extent of indicating that on behalf of the department they claim the fulfillment of such obligations. The first item on the bill of particulars is a dispatch from Jeffersonville to San Francisco. Neither of these places isonthesubsidizedline. At neither of them was there any agent of the railway company. The delivery on the Western Union blank, to a Western Union agent at the former place, of a dispatch, whose nature indicated that it was entitled to special facilities and rates at the hands of the telegraph company, and with no further request than that it should be forwarded to itil destination, was in no sense a requirement that at some remote point it should be transferred, for a portion of the route, to another telegraphic system, froin which the government was entitled, if it chose, to require a different service upon different terms. It was the duty of the agent receiving
DALHEIM 'II. LEM6N.
225
it'to forwa!d it at once,'and, if'it were possible, without break,to its destination. If, in its transit, it were taken at some intermediate point by an agent of the telegraph company, who was also, at that point, an agent of the railway company, and operating the wires of both, it would, in the absence of any instructions, have been an unwarranted interference on his part with the government's right of choice, to have undertaken to make the change. It was not for him to determine which of its two subsidized systems was to be employed. He was bound to know that the message which had thus come over the wires of his company was being transmitted at special rates, and had no authority, by transferring it to another system, to alter those rates for any portion of the route; Which of the two systems it was. on the whole, for the best interest of the government to employ, was a matter to be determined by its agents; not by those oitha defendants. Nor does it seem reasonable to applyany different rule where the dispatch was delivered at a station on the line of the road where the operator was an agent of both companies. The presentation of the dispatch on a Western Union blank, (and also, in the case of prepaid messages, the payment of the special rate,) without any direction to use the railway system, was notice to him, which he could not disregard, to give to the message the advantages which accrued from its transmission by' the Western Union lines. Verdict directed for defendants.
(Circuit Court, D. Minnesota, Fourth, Division. Maroh 7, 181l1.) 1 MASTER AND SERVANT-INJURIES TO CONVICT EMPLOYE-CONVICT. LABOR.
In the ,year 1.888 the defendants entered into a contraot with· the state of Minnesota to erect,.a building forming part of the state-prison at Stillwater. In the ereotion thereof, by arrangement between the prison authorities and the defendants,·the labor .of the plaintilf, who was a conVIot in state-prison, was availed of, the benefit thereof going to the defendants. By the fall ofa scalfold on whi'Oh plaintiif 'waS standing while engaged in plastering the interior of the bUilding, the plaintilf,was injured, and, upon the expiration of his sentence, he brought suit . against to recover f(jr the injuries callsed by the fall of the scaffold. Held, that the provisions of the act of the legislature of Minnesota, approved March 8, 1887,forbidding the out of convict laboJ:, would not prevent the relation of master and servant from existing between the parties, if the defendl\Dts knowingly received the benefits of plaintilf'slabor; and that the fact that plaintilf. being a convict, was not entitled to compensation for his labor, was immaterial.
B.
SAME-DAMA.GES-DISABILITY DURING PERIOD 01' IMPRISONMENT.
Held, further, that, so far as the injUry alfected plaintiff's ability to labor dur" lng the period of his imprisonment, he could not recover therefor.
At Law. A1·ctander & Arctander, for plaintiff. Fayette Marsh, for defendants. SHIRAS, J., (oraUycharging jury.) In this case ofChitrles Dalheim Vll. F. A. Lemon lind others, composing the defendant firm, the plaintiff v,45F.no 4-15