UNION ISLAND TEL. CO. 11. DE MAGATHIAS.
roads turned over to them, they came back and asked us to run the roads for them; so that all the action we now take is to say that this matter will be continued for the present.
UNION ISLAND TEL.
(Jo'U'rt, 8. D. Georgia, E. D. November Term, 1885.) .
NAVIGABLE RIVERS-OBSTRUCTION BY STATE.
It is competent for the municipal power of a state, in good faith and for a constitutional purpose, to authorize the obstruction of one of its navigable and tidal streams.
SAME-POWER OF CONGRESS.
Congress, however. may interpose, by either general or special laws. It may regulate all obstructions in or over navigable waters, and cause their removal or· punish those who shall thereafter erect them. Any state law in opposition to such action by congress is inoperative and void.
SAME-STATE LAW, WHEN VOID.
TELEGRAPH COMPANIES-GEORGIA CONSTITUTION.
The constitution of Georgia conferring the exclusive powers on the legislature to charter telegraph companies, the charter granted to the plaintiffs by the superior court is null and void.
At Law. Lester If Ravenel, for plaintiffs. Garrard d; Meldrim, for defendant. SPEER, J. The Doboy & Union Island Telegraph Company 60nsisted of a number of persons engaged in sawing and shipping timber,-"Georgia pine." Their offices were on Union island, separated from the main land by Doboy river and art intervening marsh. For convenience in with the shore, they applied to the superior court of McIntosh county, Georgia, for a charter authorizing them to construct and use a telegraph line from Doboy to Union island. The order was granted. To complete the line it was necessary to lay a cable a half mile long across the Doboy river, a navigable stream. or arm of the sea, and a common highway for commerce, foreign and coastwise. The location of the cable was indicated by a sign at each end, on which were painted the words "Cable, Don't Anchor." On the day of December, 1884, the Portuguese schooner Industria sailed into Doboy harbor. It is not apparent whether the master and mariners in charge of the Industria were sufficiently conversant with the language usually employed by the officials of the Doboy & Union Island Telegraph Company to make out the warning conveyed in the words "Cable, Don't Anchor." It is within the range of possibility that these navigators saw the sign of warning and construed it to mean "Welcome to Doboy." This much is certain, they dropped their anchor the moment the prow of the
Industria crossed the line of the subaqueous cable. It is equally clear that the flukes of the anchor fouled the cable, and when the anchor was weighed the next morning the cable came up with it,when one of the crew of the Industria with the blow of an axe severed the cable and the telegraphic communications of the Doboy & Union Island Telegraph Company. For this destruction of their cable, and the damages flowing therefrom, the plaintiffs bring their action. The defenses interposed by the owner of the Industria are twofold. In the first place, he insists that the Doboy river is a navigable strea.m; that the congress of the United States has not authorized the cable, which he contends is an obstruction to commerce; that the cable, fouling his anchor, it was permissible for him to cut loose, and that the result was damnum absque injuria. In the second place, he insists that there is no such legal entity as the Doboy & Union Island Telegraph Company, and that the alleged charter is null, and in fact no charter. The right of navigation has always been a matter of jealous public regard. Chief Justice HOLT said that to hinder the course of a navigable stream was against Magna Gharta. The right has been under judicial consideration several times in this country. State v. Wheeling et B. B. Go., ;l:J How. 518; Gilman v. Philadelphia, 3 Wall. 713. From these authorities the "following rules may be considered as settled. It is competent for the municipal power of a state, in good faith, and for a constitutional purpose, to authorize the obstruction of one of its own tidal and navigable streams. Congress, however, may interpose by either general or special laws. It may regulate all obstructions in or over navigable waters, and cause their removal, and punish those who shall thereafter erect them. Any state law in opposition to such action by congress is inoperative and void. Within the sphere of 'their authority both the legislative and judicial power of the nation is paramount. Applying these rules to the case before UEl, it will be found that congress has not attempted, in any way, to regulate the waters where the Doboy & Union Island Telegraph Company have laid their cable. Then it is evident that it is competent for the state of Georgia to weigh and balance against each other the considerations which belong to the subject,-the obstruction to navigation on one hand, and the advantage to the public or to individuals on the other,-and to decide which shall be preferred, and how far one shall be made subservient to the other. It is insisted for the defendant, however, that the state has taken no action in the premises, and that no charter has been granted to the Doboy & Union Island Telegraph Company. The charter offered in evidence was granted by order of the superior court of McIntosh county. The constitution of the state provides:
"The general assembly shall have no power to grant corporate powers and privileges to private companies. except banking. insurance, railroad. canal, navigation, express, and telegraph companies, but it shall prescribe by law
IN RE HERZBERG.
the manner in which such powers shall be exercised by the courts."
This provision of the state constitution has been interpreted by the highest court of appeals in the state to confer on the legislature the exclusive power to charter telegraph companies. In Kehler v. Jack Manllfg Co., 55 Ga. 641, the supreme court say:
"In our judgment. it was the true intent and meaning of the constitution to confer upon the general assembly the exclusive power to grant charters to all the excepted companies named therein."
Now,a telegraph company is an "excepted company named therein." It follows, therefore, that since the charter of the Doboy & Union lsI· and Telegraph Company was granted by a court and not by the Legislature, not only does its cable which obstructed the anchor of the Industria appear to be unauthorized by the state, but the plaintiff corporation disappears from the record, and "leaves not a wrack be. hind." It follows that the proceedings against the Industria must be dismissed.
(District Oourt, S. D. New York.
5106. An injunction is authorized by section 5106, to await the determination of the question of the bankrupt's discharge only. After the discharge has been granted, the bankrupt's relief against the further prosecution of suits in the state courts must be obtained in those courts only, where the effect of the discharge must be determined. Held, therefore, that an injunction obtained ex parte in the bankruI;Jtcy court. after the discharge had been granted, continuing the previous mjunction, was improvidently granted, and should be vacated.
In Bankruptcy. N. L. Hahn, for bankrupt. Van Loon cf: Capron, for creditors. BROWN, J. bankrupt in this case procured from this court an injuuction staying the proceedings against him in the state court until the determination of the question of his discharge. His discharge was obtained on the twenty.fifth of June, 1885. On the following day he obtained from this court ex parte a further injunction perpetually staying thfl prosecution of the action in the state court. A motion is now made to vacate the last-named order as improvidently granted. Section 51060f the Revised Statutes authorizes thecourt in bankruptcy to stay prosecution of suits against the bankrupt "to await the determination of the court in bankruptcy on the question of his discharge." In the Case of Rosenbe1'g, 3 Ben. 14, 18, BLATCHFORD, J., says:
"The manifest object of the provision is to relieve the bankrupt, while he is proceeding in good faith to obtain his discharge, and until the question