The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 317
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UNITED STATES V. WESTERN UNION TELEGRAPH CO. 317
(272 F )
fore withheld any resistance to the landing of the cable on the condition that
the offensive monopoly feature of the concession be abandoned, and that the
right of any cable which may be established by authority of this government
to land upon French territory and to connect with French land lines and
enjoy all the necessary facilities or privileges incident to the use thereof upon
as favorable terms as any other company be conceded. As the result thereof
the company in question renounced the exclusive privilege, and the representa-
tive of France was informed that, understanding this relinquishment to be
construed as granting the entire reciprocity and equal facilities which had
been demanded, the opposition to the landing of the cable was withdrawn."
President Grant then set forth conditions which he thought should
be exacted before allowing foreign cables to land, and said:
"I present this subject to the earnest consideration of Congress. In the
meantime, and unless Congress otherwise direct, I shall not oppose the land-
ing of any telegraphic cable which complies with and assents to the points
above enumerated, but will feel it my duty to prevent the landing of any
which does not conform to the first and second points as stated, and which
will not stipulate to concede to this government the precedence in the trans-
mission of its official messages and will not enter into a satisfactory arrange-
ment with regard to its charges."
There is attached to the moving papers letters from Secretaries of
State Fish, Evarts, Blaine, and Day (now Mr. Justice Day) requiring
executive permits, as well as from Secretary Bayard and Secretary
Root, and Attorneys General Griggs, Knox, Wickersham, and McRey-
nolds (now Mr. Justice McReynolds). The only break in this con-
tinuous position taken by the Executive Branch of the government
for the last 50 years was during the administration of President Cleve-
land. Secretaries Gresham and Olney declined to exercise the power
upon the ground that presidential action would not be binding upon
Congress, and that the President was without power.
In 1898 Acting Attorney General Richards (22 Op. Attys. Gen. 25-
27) rendered an elaborate opinion in regard to this matter in which he
summarized the position of the government by saying:
"I am of the opinion, therefore, that the President has the power, in the
absence of legislative enactment, to control the landing of foreign submarine
cables. He may either prevent the landing, if the rights intrusted to his
care so demand, or permit it on conditions which will protect the interests
ot this government and its citizens; and if a landing has been effected without
the consent or against the protest of this government, respect for its rights and
compliance with its terms may be enforced by applying the prohibition to the
operation of the line, unless the necessary conditions are accepted and ob-
served."
Under such circumstances, unless congressional legislation regulat-
ing foreign telegraphic business can be invoked, it may be reasonably
contended that Congress has acquiesced in the long-continued claims
of the Executive.
In the recent case of United States v. Midwest Oil Co., 236 U. S.
459, 35 Sup. Ct. 309, 59 L. Ed. 673, it appeared that there had been an
executive practice of long standing to withdraw public lands from sale
whenever the President thought best, although Congress had opened
them to occupation. This withdrawal had been made pending pro-
posed legislation in spite of the fact that Congress had declared pub-
lic lands containing petroleum or oil free and open to occupation, ex-___
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38843/m1/339/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.