
    Home Telegraph Company v. Mayor and City Council of Nashville.
    (Nashville.
    December Term, 1906.)
    1. CONSTITUTIONAL LAW. Requirement as to noting on the journals the fact of the signing of bills by speakers is directory, and not mandatory.
    The constitutional provision requiring the fact of the signing of legislative bills by the respective speakers In open session to be noted on the journals is merely directory, and not man* datory. (Post, pip. 6-15.)
    Acts cited and construed: 1885, ch. 66.
    Const, cited and construed: Art. 2, sec. 18.
    Cases cited and approved: State v. McConnell, 71 Tenn., 341; Gaines v. Horrigan, 72 Tenn., 611; Williams v. State, 74 Tenn., 553; Brewer v. Huntingdon, 86 Tenn., 737; State, ex rel., v. Algood, 87 Tenn., 163; Nelson v. Haywood County, 91 Tenn., 596; Railroad y. Telegraph Co., 101 Tenn., 66; and numerous cases from other States cited in the opinion on pages 10-13.
    
      3. SAME. Same. Act signed by speakers and approved by governor is properly passed, unless contrary is shown by journals; case in judgment.
    An act signed by the'speakers of the senate and house, and approved by the governor, will be treated as properly passed, unless the contrary is shown by the journals, and the contrary is not so shown where the house journal fails to show that it was signed by the speaker m open session. (Post, pp. 6-15.)
    See citations under first headnote.
    3. TELEGRAPHS AND TELEPHONES. Telegraph corporation cannot do a telephone business under its telegraph charter.
    A telegraph corporation is not authorized to install a telephone plant or system and do a telephone business under a telegraph charter. (Post, pp. 15-23.)
    Code of 1858 cited: Sec. 1316.
    Acts cited and construed: 1849-50, ch. Ill; 1875, ch. 142, sec. 8; 1885, ch. 66; 1889, ch. 204.
    Cases cited and approved: Richmond v. Telephone Co., 174 TJ. S., 761; Toledo v. Telegraph Co., 46 C. C. A., 111.
    4. TELEPHONE CORPORATIONS. For transmission of messages were not authorized before Acts of 1907, ch. 134.
    Before the passage of the Talbert bill (Acts 1907, eh. 134), there was no statute in Tennessee authorizing the incorporation of telephone companies for the transmission of- messages. (Post, pp. 18, 19.)
    Acts cited and construed: 1875, ch. 142, sec. 8; 1883, ch. 232; 1885, ch. 66.
    FROM DAVIDSON.
    Appeal from the Chancery Court of Davidson (*ounty. —John Allison, Chancellor.
    
      BAXTERS and Luke Lea, for complainant.
    Hill McAlisteb, and J. C. Bbadeokd, for defendant.
   Mr. Justice Wilkes

delivered the opinion of the Court.

The complainant is a telegraph company, organized on the 26th of January, 1906, under section 8, c. 142, p. 243, Acts 1875.

. It sought to enter the city of Nashville with its lines and plant, and was denied the right to use the streets and alleys of the city for that purpose by the mayor and city council. This bill is to enjoin the mayor and city council, which will be hereafter referred to as the city, from preventing said entrance and occupying the streets, alleys, avenues, squares, and public thoroughfares, by placing thereon poles, wires, cross-arms, guides, braces, and other necessary fixtures, for the installation and operation of its system or plant in the city of Nashville.

An injunction was granted, which was afterwards dissolved. An answer was filed, proof was taken, and on final' hearing the chancellor refused to grant the relief prayed for, and dismissed complainant’s bill; and the complainant appealed. The court of chancery appeals reversed the holding of the chancellor, and the city has appealed to this court.

. The purpose of the company is stated in the bill and charter to be to construct a telegraph line from Franklin, in Williamson county, to Goodlettsville, in Davidson county, and in doing so it claims the right by law to erect all necessary fixtures along the line of any public highway, or the streets of any village or city, or any lands belonging to the State, free of charge; and such is the provision of its charter.

It proposes, not only to pass over the streets, alleys, and highways of the city, but to install not less than thirty instruments therein, with the latest improvements, appliances, and inventions, for the operation of a telephone system or business in the city, and between the city and other points beyond its limits.

Its purpose is thus expressed in section 4 of the bill: “Complainant purposes and intends to erect its poles and wires over and along the streets and alleys of the several cities hereinbefore mentioned, and the highways and public roads connecting them, for the purpose of establishing numerous terminals or stations, where it will receive and transmit messages over its own lines to any address within the city of the forwarder, or in any of the aforesaid cities, or to transmit said message by means of intertrafftc arrangements with other telegraph companies, which are being negotiated successfully at present, to the cities throughout the country. ... It will establish at its public and private stations both telegraph and telephone instruments, utilizing the latest improvements and inventions in the science of telegraphy, which permit the same wire to be used at the same time for the transmission of messages through both of said instruments.”

The city in its answer says that it has not granted or given any permit or license to complainant to occupy the city, and that it is barred from doing so by an ordinance of the city, which is in these words:

“It shall be unlawful for any person, firm, or company, or corporation, to erect and run wires along, over, or through the streets or alleys of the city, or over the private property or grounds of any person in the city, for signalling or electrical purposes, without first obtaining the consent of the mayor and city council to do so; and any person, firm, etc., who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and fined before the judge of the city court, not less than $25 nor more than $50 for each offense.”

The contention of the city is, in brief, that no telegraph or telephone company can occupy its streets, without first obtaining its consent, and that under its charter, being chapter 204, p. 405, Acts 1899, it has the right to prescribe the mode and manner in which a franchise, or permit, shall be granted by the city.

Complainant claims the right to occupy the streets of the city, without its consent, and over its protest, under chapter 111, p. 803, Acts 1849-50, section 1316, Code 1858, section 8, c. 142, p. 243, Acts 1875, and chapter 66, p. 120, Acts 1885.

The Code of 1858, following the act of 1849-50, provided that any person or corporation may “construct a telegraph, line along the public highways and streets of this State or other lands belonging to the State, free of charge, . . . and may erect the necessary fixtures therefor.”

The act of 1875 provides that a telegraph corporation may construct a telegraph line and erect the necessary fixtures along the line of any public highway, the streets of any city or village, etc.

Acts 1885, p. 120, c. 66, provides that “any person or corporation, organized by virtue of the laws of this State, . . . for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence, the equivalent thereof which may be hereafter invented or discovered, may construct, operate, and maintain such telegraph, telephone, or other line necessary for the speedy transmission of intelligence, along and over the public highways or streets of the cities and towns of this State,” etc.; “but the ordinary use of such public highways, streets,” etc., “shall not be obstructed,” etc.

It is said that this latter act is unconstitutional.

The objection is that it does not appear from any entry on the journal of the house of representatives that it was ever signed by the speaker of the house in open session.

The constitutional provision brought in question is section 18 of article 2, and is in these words: “No bill shall become a law until it shall have been . . . signed by tbe respective speakers in open session, tbe fact of sncb signing to be noted on tbe journals,” etc.

This provision has- been before tbis court on several occasions; but we consider its proper construction as still an open question.

In Railroad v. Telegraph Company, 101 Tenn., 66, 46 S. W., 571, 41 L. R. A., 403, tbe constitutionality of tbis same act was challenged upon tbe same ground; but, it not being necessary to pass upon it, tbe court declined to do so, saying that it was a question of grave difficulty and doubt.

Tbe facts are that tbe act as enrolled and deposited in tbe office of tbe secretary of state is signed by both tbe speaker of tbe senate and tbe bouse, and is approved by tbe governor, and it so appears in tbe Acts published by tbe authority of tbe State. There is no entry on tbe bouse journal showing that tbis act was signed by tbe speaker of the bouse in open session; but there is an entry on tbe bouse journal showing that tbe bill was transmitted to tbe bouse from tbe senate for tbe signature of its speaker, on the afternoon of March 24, 1885, and there is an entry on tbe senate journal on tbe same afternoon recording a message, signed by tbe clerk of tbe bouse, and stating that the said act bad been signed by tbe speaker of tbe bouse of representatives. And the senate journal contains a further entry that tbe bill was signed by tbe speaker of the senate.

We refer to tbe following cases as bearing,, more or less, upon tbe question.

In State v. McConnell, 71 Tenn., 341, the court, in discussing whether a statute enrolled and signed by the respective speakers, and approved by the governor, could be attacked on account of procedure in its enactment and the journals looked to, said: “The bill concedes that the act under consideration was signed by the speakers of both houses of the legislature and by the governor. Under these circumstances, the presumption in favor of the regularity of the passage of the act, through all its stages, is so strong, that the mere failure of the journal of the senate to show a second reading, if the fact be that way, would not affect its validity, but would be treated as a mere clerical omission.”

In the case of Gaines v. Horrigan, 72 Tenn., 611, the court said: “Many authorities are referred to to show that notwithstanding an act has the signature of the two speakers and the approval of the governor, and is published by the proper authority, nevertheless the court may look to the journals of the two houses; and if from them it appears that the bill was not constitutionally passed, the act must be declared void. Such seems to be the decided weight of authority.”

In Williams v. State, 74 Tenn., 553, the court said: “The only question, therefore, that is raised by these facts is whether the failure of the journal of the house to show affirmatively that the bill received, on its third reading, the constitutional majority, is fatal. The rule is that the journals may be looked to in order to determine whether the bill was in fact passed, but the very reasonable presumption must be made in favor of a legislative body acting in the apparent performance of its legal function.”

In Brewer v. Mayor, 86 Tenn., 737, 9 S. W., 168, the court, in deciding the same question, said: “We hold now that irregularities will be cured and omissions supplied by presumptions; but, where it appears that a bill was rejected, the journal entry so showing cannot be disregarded, and the act is void.”

In the case of State, ex rel., v. Algood, 87 Tenn., 163, 10 S. W., 310, the senate journal showed that the staple in question had been rejected in the senate, and that a motion to reconsider had been entered; and though there was no record of any action on the motion to reconsider, the court held that the act would be presumed to have been regularly called up and favorably acted upon. The court said: “We think the rule well settled that, where the journal does not affirmatively show the defeat of the bill, every reasonable presumption and inference will be indulged in favor of the regularity of the passage of an act subsequently signed in open session by the speaker.”

This case was cited with approval in Nelson v. Haywood County, 91 Tenn., 596, 20 S. W., 1, as was also a quotation from Field v. Clarke, 143 U. S., 649, 12 Sup. Ct., 495, 36 L. Ed., 294; the court holding in regard to an irregularity in the enactment of a statute that it would not presume that the legislature was derelict in such an important particular.

Many cases from other States may be cited holding similar doctrines, such as Sherman v. Story, 30 Cal., 253, 89 Am. Dec., 93; Weeks v. Smith, 81 Me., 538, 18 Atl., 325; Hunt v. Wright, 70 Miss., 298, 11 South., 608; Standard Cable Co. v. Attorney-General, 46 N. J. Eq., 270, 19 Atl., 733, 19 Am. St. Rep., 394; State v. Young, 32 N. J. Law, 29; State v. Glenn, 18 Nev., 34, 1 Pac., 186; State v. Swift, 10 Nev., 176, 21 Am. Rep., 721; Speer v. Plankroad, 22 Pa., 376; Day L. & C. Co. v. State, 68 Tex., 536, 4 S. W., 865; Ex parte Tipton, 28 Tex. App., 438, 13 S. W., 610, 8 L. R. A., 326; Williams v. Taylor, 83 Tex., 667, 19 S. W., 156; State, ex rel., v. Jones, 6 Wash., 452, 34 Pac., 201, 23 L. R. A., 340.

In State v. Young, supra,, it is said: “Can any one deny, that, if the laws of the State are to be tested by a comparison with these journals, so imperfect, so unauthenticated, that the stability of all unwritten law will be shaken to its very foundation. It is scarcely too much to say that the legal existence of almost every legislative act would be at the mercy of all persons having access to these journals; for it is obvious that any law can be invalidated by the interpolation of a few lines, or the obliteration of one name and the substitution of another in its stead. I cannot consent to expose the State legislature to the hazard of such probable error or facile fraud.”

In Sherman v. Story, supra, it is said: “Better, far better, that a provision should occasionally find its way into the statutes through mistake, or even fraud, than that every act, State and national, should at any and all times be liable to be pat in issae, and impeached by the joarnals, loose papers of the legislatare, and parol evidence. Snch a state of ancertainty in the statates would lead to mischief, absolate and intolerable.”

In Weeks v. Smith, sapra, the coart said: “Legislative joarnals are made amid confusion of the dispatch of basiness, and are therefore mach more likely to contain errors than the certificates of the presiding officers are to be antrae. Moreover, pablic policy requires that the enrolled statates of oar State, fair apon their face, shoald not be pat in qaestion after the pablic had given faith to their validity. No man shoald be reqaired to hant throagh the joarnals of the legislatare to determine whether a statate, properly certified by the speaker of the hoase and the president of the senate, and approved by the governor, is a statate or not.”

Of the forty-six constitntions adopted by the different States of the Union and the United States, the following States, to wit, Alabama, Colorado, Missoari, Montana, North Dakota, Soath Dakota, Tennessee, Texas, Utah, and Wyoming, have provisions in their constitntions re-qairing that the fact of signing of bills by the speakers shall be entered on the legislative joarnals.

The langaage of this section of the constitution of Tennessee of 1870 is as follows:

“No bill shall become a law antil it . . . shall have been signed by the respective speakers in open session, the fact of sach signing to be noted on the journal.”

The langaage of this claase in each of the other nine constitutions containing similar provision employs the word “shall” in a manner similar to that shown by the following quotation from section 38 of article 3 of the constitution of Texas

“The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the legislature, after their titles have been publically read before, and the fact of such signing shall be entered on the journal.”

This particular clause in the constitutions of the ten States named above has been judicially construed in Colorado, Missouri, Montana, Texas, and Wyoming. In re Roberts (1881), 5 Colo., 525; State v. Mason (1900), 55 S. W., 637, 155 Mo., 486; State v. Mead, 71 Mo., 271; State v. Long, 21 Mont., 26, 52 Pac., 645; Hunt v. State, 22 Tex. App., 396; State v. Swan, 7 Wvo., 166, 51 Pac., 209, 40 L. R. A., 195, 75 Am. St. Rep., 889; State v. Gillespie, 12 Wyo., 284, 75 Pac., 1135; State v. Cahill, 12 Wyo., 225, 75 Pac., 433.

In the case of In re Roberts, supra, and the two cases for Missouri—State v. Mason, and State v. Mead—the courts held squarely that the clauses of the constitution of Colorado and Missouri, respectively, requiring that the fact of the signing of the bills by the speakers shall be entered on the journal, were clearly directory and not mandatory.

In the case of In re Roberts, supra, was construed section 26 of article 5 of the Colorado constitution, which provides that:

“The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the general assembly, after their titles shall have been publicly read, immediately before signing; and the fact of signing shall be entered on the journal.”

The court said: “In respect to the other objection that it does not appear by the record that the bill was signed by the speaker in the presence of the house, we must hold that section 26 of article 5 of the constitution is directory merely, in so far as it relates to the requirement that the fact of signing shall be entered on the journal.”

In the case of State v. Long, supra, although section 29 of article 3 of the constitution provides, “The provisions of this constitution are mandatory or prohibitory unless by express words they are declared to be otherwise,” and section 27 of article 5 provides that “the presiding officer of each house shall, in the presence of the house over which he presides, sign the bills and joint resolutions passed by the legislative assembly, immediately after their titles have been publicly read and the fact of signing shall be at once entered on the journal,” the court held the act in question valid and constitutional, saying:

“The journal omitted to show the fact that the bill in question was signed by the presiding officer of each house. The enrolled bill bears the signature of such presiding officers, and appellants do not aver or argue that the bill was not, as a fact, duly signed by sucb presiding officers. The presumption is that the legislature and the officers thereof did their duty and that the enrolled bill was regularly passed.”

A careful analysis of section 18 of article 2 of our constitution shows that it contains five clauses using the language ordinarily construed to be mandatory:

First, every bill shall be read once on three different days, and passed each time in the house where it originated, before- transmission to the other.

Second, no bill shall become a law until it shall have been read and passed on three different days.

Third, until it shall have received on its final passage in each house the assent of a majority of all the members to which that house shall be entitled under this constitution.

Fourth, until it shall have been signed by the respective speakers in open session.

Fifth, until it shall have received the approval of the governor, or passed without it, as otherwise provided for. •

■ And each of these five mandates was expressed by the use of the mandatory word “shall,” an equivalent of the word “must.”

Hedged in between the fourth and fifth clauses is the provision of the “fact of such signing [referring to the signing by the speaker] to be noted on the journal.”

The use of the mandatory “shall” in the first four, the substitution, for it of the suggestive or directory “to be” in this clause, and the immediate return to the use of the mandatory “shall” in the sixth clause of this section, indicates that the framers of this section of the constitution made a distinction between the several requirements prescribed therein and used apt words to express this distinction.

An opposite view and contrary holding would lead to confusion and disastrous results, in view of our legislative history. It would put it in the power of the journal clerk of either house, by design or negligence, to nullify any legislation, no matter how important, by simply omitting the necessary entry upon the journal, or erasing or changing an entry already made; and this latter could easily be done, inasmuch as bills are simply referred to by their number.

It appears from the certificate of the secretary of state that the omission we are now considering is made in 176 acts passed at nine sessions of the general assembly. Many of these are the most important laws upon our statute books. Public policy, therefore, suggests that this provision of the constitution should be held to be merely directory, and not mandatory; and such is our construction. Acts bearing the signature of the speak ers, and approved by the governor, will be treated as properly passed, unless the contrary is shown by the journals.

We are of opinion, therefore, that the act in question is not unconstitutional because of the defect pointed out and complained of.

It is next said that a body incorporated as a telegraph company is not authorized to do a telephone business, and that there is no statute in Tennessee authorizing the incorporation of a telephone company.

It is replied to this that the telephone and telegraph are one and the same thing, based upon the same principle, and that the telephone is simply an improved telegraph.

Looking at this question from a scientific standpoint, we think that this is true; but it is apparent, and must be conceded, that quite a difference exists between telegraph and telephone systems in matters and particulars that affect the issues in this case.

• A telegraph system does not require so many wires, poles, and fixtures as does a telephone system. In a city like Nashville a telegraph would require but one or two lines and rights of way for purposes of entrance and exit. It would have but few stations, from which messages would be delivered to the various parts of the city by messengers.

A telephone system, however, to be effective, requires, not only rights of way to enter and leave the city, but also to occupy all its streets and alleys, and to enter its business houses, residences, and other places, thus making it necessary to use many poles and wires and other fixtures, in order to do the business expected of it. It must therefore, necessarily, make use of the streets and alleys generally of the city, and incumber them with a network of wires and poles and fixtures, to a much greater extent than a telegraph system would do.

It is said that telegraphs, telephones, and commercial railroads stand upon a different footing from street car systems, since the latter are necessarily local, and their control affects .the inhabitants of the city; hut it must not be forgotten that telegraphs, telephones, and commercial roads may use the city’s streets as a mere way of passage through the city from point to point, or for the purpose of doing, in addition, a local business.

It has been held that a commercial railroad may, under restrictions, occupy the streets of a city, without its consent; but it has not been held that it may use the streets and alleys generally for the purpose of side tracks, switches, spurs, and loops, or to lay a network of rails through the various thoroughfares of the city, and thus incumber them for purposes of ordinary use.

It is difficult to see why a telegraph or telephone company, in the prosecution of its local business within the limits of the city, should not be subject to the control of the same, in the same manner as is a street car system ; and it is not unreasonable to hold that while a telephone or telegraph line, like a commercial railroad, may pass through a city over its streets, yet, when it stops to do a local business, it must do like the local enterprise— submit to the control of the city as to all business done within its limits.

Complainant in this cause is claiming the right, and asserting its purpose, to do a local, as well as a long-distance or foreign, business. "While there are material differences between telegraph and telephone companies, and in the manner in which they are operated, we feel called upon only to note such differences as may be deemed material to the city, because of the occupation of its streets.

To the differences already adverted to may he added the greater danger to human life, caused by the network of telephone wires, which are liable to become displaced, broken, or defective, and to cross the wires of telegraph and electric light companies, causing death or injury to persons' passing along the street, to whom the city owes the duty of• protection; also, the increased risk of fires, caused by defective, broken, or crossed wires, caused by their blowing down in storms, and the blocking of the streets by fallen poles and tangled wires. These and other incidents of telephone operations impose on the streets of the city a burden which a telegraph company does not, and from the very nature of things cannot do.

Not until the passage of the Talbert bill has there been any authority under our statutes to incorporate a telephone company, whose purpose it is to transmit messages as complainant proposes to do. It is true that the act of 1888 authorized charters for telephone companies, but that act simply gave such companies the power to manufacture electricity for telephone purposes — that is, to erect and install power houses — but gave no authority to erect a pole, or to string a wire, or to install a plant for the transmission of messages.

When the act of 1849-50 was passed, telephones were not invented, and when the act of 1875 was passed the invention had not .assumed a practical shape. In its legislation at these daces, with regard to telegraphs, the general assembly did not have in view telephones; and since that date they haye in onr legislation been recognized as separate matters, closely connected, to be sure, bnt different in many respects. To illustrate: Our revenue laws tax them separately, and as distinct property, and on a different basis; telegraphs being taxed upon their length of wires, while telephones are taxed on the number of boxes and the population of the city.

Their modes and apparatus are different. Shilled experts, only, can operate the telegraph; but any child may operate, or assist in operating, the telephone. Only the employees of the telegraph can manipulate its instruments and understand its signals; but all the patrons and the public generally cooperate with the employees of the telephone in its use. The telephone transmits the human voice. The telegraph does not.

But the complicated, burdensome, dangerous character of its structure and fixtures is the feature of the telephone system which makes it cumbersome upon the streets of the city, and makes it necessary that it should be under the control and supervision of the city, whose duty it is to keep the streets safe and to protect the lives and property of its citizens.

A telephone company has no more right to occupy the streets under a telegraph charter than a street car company would have under an interurban, or commercial, railroad charter.

We are of opinion, therefore, that complainant cannot operate a telephone system, such as it proposes, in the

city of Nashville, under the authority and power given to it as a telegraph corporation.

The exact question was involved and passed upon directly in the leading case of Richmond v. Southern Bell Tel. Co., 174 U. S., 761, 19 Sup. Ct., 778, 43 L. Ed., 1162. In that case, the telephone company installed its plant upon the streets and within the city of Richmond, Va-ginia, by the consent and under a grant from the city authorities. The company afterwards had a disagreement with the city, and the latter revoked its permission to the company to use the streets for telephone purposes; and the company sought to compel the city to allow the use of the streets for that purpose. The telephone company was operating under a power conferred by congress upon telegraph companies, and it was insisted that it had no right under such authority to operate a telephone system.

The supreme court of the United States, reversing the court below, said:

“It may be that the public policy intended to be permitted by the act of congress of 1866 would suggest the granting to telephone companies of the rights and privileges accorded to telegraph companies. And it may be, if the telephone had been known and in use when that act was passed, the congress would have embraced within its provisions companies employing instruments for electrically transmitting articulated speech. But the question is, not what the congress might have done in 1866, nor what it may or ought now to do, but what was in its mind when enacting the statute in question. Nothing was distinctly known of any device by which articulate speech could he electrically transmitted or received between different points, more or less distant from each other, nor of companies organized for transmitting messages in that mode. Bell’s invention was not made public until 1876. Of the different modes now employed to electrically transmit messages between distant points, congress, in 1866, knew only of the invention then and now popularly called the “telegraph.” When, therefore, the act of 1866 speaks of telegraph companies, it could have meant only such companies as employed the means then used or embraced by existing inventions for the purpose of transmitting messages merely by the sounds of instruments and by signs of writings. It is not the function of the judiciary, because of discoveries after the act of 1866, to broaden the provisions of that act, so that it will include corporations or companies that were not and could not have been at that time within the contemplation of congress. If the act be construed as embracing telephone companies, numerous questions are readily suggested. May a telephone company, of right, and without reference to the will of the cities, construct and maintain its wires in every city in the territory in which it does business? May the constituted authorities of a city permit the occupancy only of certain streets for the business of the company? May the company of right fill every street and alley in every city or town in the country with poles over which its wires are strung, or may the local authorities forbid the erection of any poles at all ? May a company run wires into every house of the city, as the owner or occupant may desire, or may the local authorities limit the number of wires that may be constructed and used within its limits? . . .
“But even if it were conceded that no such confusion would probably arise, it is clear that the court should not construe an act of congress relating in terms only to telegraph companies as intended to confer upon companies engaged in the telephone business any special rights in the streets of cities and towns of the country, unless such an intention has been so manifested. The conclusion that the act of 1866 confers upon telephone companies the valued rights and privileges therein specified is not authorized by any explicit language used by congress, and can be justified by implication only. But we are unwilling to rest the construction of an important act of congress upon implication merely, particularly if that construction might tend to narrow the full control always exercised by the local authorities of the States over streets and alleys within their respective jurisdiction. If congress desires to extend the provisions of the act of 1866 to companies engaged in the business of electrically transmitting articulate speech, ... let it do so in plain words. It will be time enough, when such legislation is enacted, to consider any questions of constitutional law that may be suggested by it.”

See, also, Toledo v. Western Union Tel. Co., 46 C. C. A., 111, 107 Fed., 10, 52 L. R. A., 730.

We pretermit all discussion of the provisions and effect of Acts 1885, p. 120, c. 66, and also Acts 1899, p. 405, c. 204, which, is the charter of the city of Nashville, since' complainant could not at the time the suit was brought, nor at this time, install a telephone plant and do a telephone business under a telegraph charter; and this is its main, if not only, object and purpose.

We cannot for a, moment credit the theory that the complainant intended to do a telegraph business, except in connection with its telephone business, and. as a mere incident to it. The idea of a line from Franklin to Good-lettsville to do a telegraph business alone is too preposterous to entertain. But, on the other hand, the pleadings and record, as well as briefs of counsel and their arguments, leave no ground for doubt- that the installation of a telephone plant and the doing of a telephone business is the object sought to be accomplished, and without this there would be no suit.

It follows that the decree of the court of chancery appeals must be reversed, the injunction dissolved, and complainant’s bill dismissed, at its cost.  