Alabama & Vicksburg Railway Co. v. Cumberland Telephone & Telegraph Co.

Whitfield, C. J., delivered the opinion of the court. Whatever may be the true rule of interpretation as to whether the phrase “telegraph company” necessarily embraces “telephone company,” as held in many authorities cited by the learned counsel for appellee, it is quite clear, in our state, that telegraph companies and telephone companies are treated, and. have always been treated, as separate and distinct companies. Chapter 38, p. 93, of the acts of 1886, was manifestly repealed by the provisions of Code 1892, § § 854-858, inclusive, and see. 4291. There is nothing in the constitutional provisions referred to which conferred upon telephone companies any authority to exercise the right of eminent domain. It results from these views that the Cumberland Telephone & Telegraph Company was without any authority under our law to exercise the right of eminent domain in this case. Irrespective, therefore, of the question of laches on the part of appellant as to answering the cross bill, since the Cumberland Telephone' & Telegraph Company had in no event power to exercise the right [445] of eminent domain, the action of the court below dissolving the injunction against it was erroneous. Turning, now, to the case made by the Mississippi Telegraph Company, it is just as clear that that company was duly and regularly incorporated under the laws of this state as a telegraph company, and under our statutes had the authority to exercise the right of eminent domain in this case. The sole objection to the exercise of that right by the Mississippi Telegraph Company set up in the pleadings is that it was but a dummy for the Cumberland Telephone & Telegraph Company, had no capital stock, and was organized for the mere purpose of enabling the Cumberland Telephone & Telegraph Company to do indirectly what- it could not directly do, and that its organization and incorporation were consequently unlawful; but whether the Mississippi Telegraph Company is a properly organized company under the laws of this state is a question between it and the state, not to be inquired into in this proceeding by the appellant. The result is that the decree as to the Cumberland Telephone & Telegraph Company is reversed, and its bill dismissed; but the decree as to the Mississippi Telegraph Company is affirmed.