American Union Telegraph Co. v. Western Union Telegraph Co. , 67 Ala. 26 ( 1880 )

SOMERVILLE, J.

— The bill in this case was filed by the' appellant against the appellee, claiming to be organized as a body corporate under the laws of Louisiana, and showing itseíf entitled, as a telegraph company, to the benefits of the act of Congress of July 24,1866, relating to the construction of telegraph lines, over the. public domain, across navigable streams, and along “ any of the military .or post-roads of the United States.”

■ The complainant does not allege the possession or ownership of any property whatever, in the State of Alabama, except its corporate franchise, nor does it claim to have acquired by contract, condemnation or otherwise, any right of way for the construction of its lines within the territorial jurisdiction of this court. It is, however, averred, that the appellee (the defendant in the bill) threatens to harrass, impede and obstruct complainant, so as to delay or prevent the construction of such work or enterprise, which it has a right to prosecute under the license authorized by the said act of congress. It is claimed that these threats, if executed, will produce irreparable damage and the bill prays an injunction to restrain the execution of them. The case was submitted on demurrer and motion to dismiss for want of equity, and the chancellor sustained the demurrer, dismissed the bill and dissolved the temporary injunction.

Section 4, art. 14 of the Constitution of 1875 provides that “ no foreign corporation shall do any business m this State without having at least one hnoiun place of business and an authorized agent or agents therein, and such corporation may be sued in any county where it does business by service of process upon an agent anywhere in this State.”

This clause of the Constitution is prohibitory and needs no legislation to carry the mere prohibition into effect, or to give it force. The bill, filed by the appellant corporation, fails to aver that it has any place of business or an authorized agent in the State of Alabama. It has, therefore, presumptively no lawful right to do any business in the State by reason of this Constitutional prohibition, provided the clause in question is not violative of the Constitution of the United States, or of any law enacted by Congress pursuant thereto.

To this question we propose to direct our inquiry. Congress has power to regulate commerce with foreign nations and among the several States.” — Const. U. S. Art. 1 § 8 par 3. The act of Congress, approved July 24, 18G6 (14 Stat. 221; Rev. Stat. sec. 5263 et seq.) under which appellant claims its license, confers simply “ the right to construct, maintain and operate lines of telegraph ” along military or post-roads of United States, over the public domain or across navigable streams, and this law has been held by the Supreme Court of the United States to be a valid exercise of the power to regulate commerce between the' States. — Pensacola Tel. Co. v. West. Union Tel. Co. 96 U. S. (6 Otto,) 1.

The same court had previously held, in Paul v. Virginia, 8 Wall. 168, that a State might exclude a foreign insurance company from its jurisdiction, and that such companies, when mere corporations find no protection in that clause of the Federal Constitution, which declares that the “ citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” — (Art. 4, § 2.) That was not, however, the case of a corporation engaged in inter-State commerce, such as a telegraph or railroad company, and as to these the rule is decided to be different. — (6 Otto, 1.) Admitting the soundness of this conclusion, we may concede its logical sequel, as 'enunciated in the case of Pensa. Tel. Co. v. West. U. Tel. Co , supra, that no State can exclude such foreign corporations from doing business within its limits, directly or indirectly, by legislative prohibitions, or otherwise.

The power to regulate commerce is manifestly a dormant power until brought into activity. It covers a wide field and embraces many subjects, and to the extent that congress fails to exercise it in any given case, it seems to be conceded that it is a concurrent power and may be exercised by any State. As said, by Justice Swayne, speaking for the Supreme Court of the United States, in Gilman v. Philadelphia, 3 Wall. 713, (725). “Until this dormant power of the .Constitution is awakened and made effective by appropriate legislation, the reserved power of the States is plenary, and its exercise in good faith cannot be made the subject of review by this court.”

This concurrent exercise of such a power by the Federal and State Governments is illustrated in the case of Steamship Co. v. Joliffe, 2 Wall. 450. There Congress had provided by law a system under which the master and owner of vessels, propelled by steam, were required to employ competent pilots to navigate such vessels on their voyage. The legislature of California passed an act entitled “An act to establish pilots and pilot regulations for the port of San Francisco.” Mr. Justice Field, delivering the opinion of a majority of the court, says, speaking of the constitutional power under discussion. But this clause does not, in terms, exclude the exercise of any authority by the States to regulate pilots, on the contrary, the authority of the States to regulate the whole subject, in the absence of legislation on the part of congress, has been recognized from the earliest period of the government.” The two acts, the one passed by the general government and the other by the legislature of California, though both related to the same general subject matter, were declared consistent with each other and a valid exercise of legislative power. The California statute was clearly a police law or regulation, and was sustained, no doubt as such. In Gilman v. Philadelphia, supra, Mr. Justice Swayne recognized a familiar political axiom in American constitutional law, pertinent to this discussion, when he said : “ The National government possesses no power but such as has been delegated to it. The States have all but such as they have surrendered.”

In Pensa. Tel. Co. v. West. Un. Tel. Co., supra, Waite, Ch. J., said : “ State sovereignty, under the constitution is not interfered with. ,Ouly national privileges are granted.” And again : “Upon principles of comity, the corporations of one State are permitted to do business in another unless it conflicts with the law, or unjustly interferes with the rights of the citizens of the State into which they come.”

In the License Tax Cases, 5 Wall. 469, it was declared by Chase, C. J. in behalf of the court, that a license to sell spirituous liquors, obtained from the General government, conferred no authority on the license to violate any police law or regulation of a State, in whose domain he might seek to exercise the right. .

The police power of a State is a most important power, essential to its very existence, and has been declared by the supreme judicial interpreter of the Federal Constitution to embrace “ the protection of the lives, health and property of her citizens, the main tain anee of good order, and the preservation of the public morals ; and the legislature,” it is added, “ cannot by any contract divest itself of the power to provide for these objects.” — Beer Co. v. Massachusetts, 97 U. S. (7 Otto), 25.

Without this valuable power, that protection of life; liberty and property, for which all government is established, could not be secured to the citizens of any commonwealth. No law of the general government is, therefore, to be interpreted as invading this power unless such intent is clear and obvious. The mandate of Sec. 4, of Art. 14, of the Constitution of Alabama, which requires foreign corporations to have a known place of business and an authorized agent, is just as much a police regulation for the protection of the property interests of its citizens as a law forbidding vagrancy among its inhabitants. It does not impede or obstruct unreasonably any right conferred on foreign telegraph corporate companies by the act of Congress of July 24, 1866, and is therefore free from constitutional objection. Nor do we design to intimate that any State law having such an effect would be constitutional.

The appellant corporation, in its bill, does not show that it is the possessor or owner of any property in the State of Alabama, nor in fact of any property, save its corporate franchises, acquired from a foreign jurisdiction. It neither claims to have purchased or condemned any right of way under its license. It does not claim to have constructed or attempted to construct any portion of its contemplated line of telegraph, or to have procured the material therefor. We do not think the protective and preventive jurisdiction of a court of equity, by the extraordinary process of injunction, can or should be invoked upon such a remote and speculative apprehension of injury. A complainant might, with as much reason, seek to enjoin waste upon a well-timbered tract of land for which he was negotiating, and a deed to which he expected to obtain the following day or ensuing week; or to ask protection by injunction against interference with a ferry franchise before he was the possessor or owner of the banks of the stream over which he proposed to run it. .

The history of equity jurisprudence, we apprehend, fails to furnish a case of this character where there has ever b.een an interposition by injunction under the pretext of preventing irremediable damage, or on any other ground of chancery jurisdiction.— Gates v. McDaniel, 2 Stew. 211; Osborn v. Bank of U. S., 9 Wheat. 738; Baird v. Shore Line, 2 Blatch. 276; High on Inj. §§ 7, 8, 10; 3 Waite’s Act. and Def. p. 685, §9.

There is no error in the decree of the Chancellor, and it is affirmed.