Joseph McKenna

“ 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 provision found in the 5th Amendment to the Federal Constitution and in the Constitutions of the several states, for just compensation for the property taken, is merely a 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 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. ”

“ In other words, it was all that was necessary to decide to meet the extreme contention made by the telegraph company, that under the act of 1866 it was entitled to occupy the streets without charge, notwithstanding its occupation was exclusive and permanent, as the court said it was. It is manifest, to hold that there can be no entry upon property without payment of compensation is not to decide that such entry can be made upon tender of compensation. Certainly, as to private property or rights, the nonconsent of the owner is a factor to be dealt with. ”

“ It gives no foreign corporations the right to enter upon private property without the consent of the owner, and erect the necessary structures for its business; but it does provide that, whenever the consent of the owner is obtained, no state 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. ”

“ 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 than a state. I cannot assent to any interpretation of the act of 1866 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. ”

“ We have no occasion to consider the validity of the act of 1866 as an attempt to grant the power of eminent domain. We decide the act to be an exercise by Congress of its power to withdraw from state interference interstate commerce by telegraph. ”

“ Counsel in advancing the argument exhibits a consciousness of taking an extreme position. It would seem, certainly if considered with other parts of their argument, to make a railroad right of way public property. ”

“ 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. ”

“ It is asserted by one party, and unqualifiedly admitted by the other, that Congress has power to grant the power of eminent domain to corporations organized for national purposes, and the arguments of the parties are addressed only to the considerations which serve to determine the intention of Congress. ”

“ It is 'a fee in the surface and so much beneath as may be necessary for support. . . . But whatever it may be called, it is, in substance, an interest in the land, special and exclusive in its nature.' Pennsylvania S. Valley R. Co. ”

“ Provided, That such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. ”