Page:Federal Reporter, 1st Series, Volume 4.djvu/303

Yf. V. TELEGEAPH CO. V. K. P. ET. CO. 280 �extsnt. In ihat case the right of one company as against the railway company would not depend in any degree upon ,the relations of the latter with other companies, or with the power that created it. In ascertaining such right we should look only to the contract between the parties, disregarding the relations of each with other parties as rea inter alios acta. So, in this case, the controversy is not -whether the Kansas Pacific Eailway Company has constructed a line of telegraph as required by its organic law, or has diseharged any of its duties to the govemment. That is a question which concerhs the government only, and which cannot arise between these parties, nnless, indeed, it should be alleged that the contract has been violated in respect to the service to be rendered to the government. In some incidental way the question might come to the surface upon a charge of a breaeh of contract, but that is not made in this record, and therefore the ques- tion is not presented in that aspect. Properly understood, the question at issue is whether the contract between these parties shall be avoided on the ground that the telegraph company has usurped a function of the railroad company, or for want of capacity in the latter to make it. Upon that question I am of the opinion that the objection is without foundation. �It is also objected that the fifth clause of the contract is in restraint of trade, and against public policy. In that clause the railway company agrees not to transport men or materials for any other telegraph company at less than the regular rates for passengers and freight, and nof to give permission to any such company to erect another line on its lands or roadway. This stipulation appears to be in opposition to the act of congress of 1866, to aid in the construction of tele- graph lines, (le St. 221,) and perhaps it is, for that reason, without effect; but, if that view shall be accepted, that para- graph may be eliminated from the contract without impairing other provisions of the same instrument. �The contract is peculiar, in that the acts to be done by the parties respectively, towards maintaining the line for their joint use, are obviously the essential feature of the agreement. �v.4,no.4 — 19 ����