The statutes of the State of Indiana, §§ 4176, 4178, Rev.Stat.
Ind. 1881, which require telegraph companies to deliver dispatches
by messenger to the persons to whom the same are addressed or to
their agents provided they reside within one mile of the
telegraphic station or within the city or town in which such
station is are in conflict with the clause of the Constitution of
the United States which vests in Congress the power to regulate
commerce among the states insofar as they attempt to regulate the
delivery of such dispatches at places situated in other states.
The authority of Congress over the subject of commerce by
telegraph with foreign countries or among the states being supreme,
no state can impose an impediment to its freedom by attempting to
regulate the delivery in other states of messages received within
its own borders.
The reserved police power of a state under the Constitution,
although difficult to define, does not extend to the regulation of
the delivery at
Page 122 U. S. 348
points without the state of telegraphic messages received within
the state; but the state may, within the reservation that it does
not encroach upon the free exercise of the powers vested in
Congress, make all necessary provisions in respect of the
buildings, poles, and wires of telegraph companies within its
jurisdiction which the comfort and convenience of the community may
require.
The statute of Indiana declares that
"Every electric telegraph company, with a line of wires wholly
or partly in this state and engaged in telegraphing for the public
shall, during the usual office hours, receive dispatches, whether
from other telegraphing lines or from individuals, and on payment
or tender of the usual charge, according to the regulations of such
company, shall transmit the same with impartiality and good faith,
and in the order of time in which they are received, under penalty,
in case of failure to transmit or if postponed out of such order,
of one hundred dollars, to be recovered by the person whose
dispatch is neglected or postponed,
provided however that
arrangements may be made with the publishers of newspapers for the
transmission of intelligence of general and public interest out of
its order, and that communications for and from officers of justice
shall take precedence of all others."
§ 4176, Rev.Stat.Ind. 1881, and that
"Such companies shall deliver all dispatches, by messenger, to
the persons to whom the same are addressed or to their agents on
the payment of any charges due for the same,
provided such
persons or agents reside within one mile of the telegraphic station
or within the city or town in which such station is."
§ 4178
ibid.
The present action is brought by William Pendleton, the
plaintiff below, to recover of the Western Union Telegraph Company
the penalty of $100 prescribed by the above statute for failing to
deliver at Ottumwa, in Iowa, a message received by it in Indiana
for transmission to that place. The complaint, as finally amended,
alleges that the defendant below, the Western Union Telegraph
Company, is a corporation organized and subsisting under the laws
of Indiana, with a line of wires from Shelbyville, in that state,
to Ottumwa, in Iowa; that on the 14th of April, 1883, at
Page 122 U. S. 349
35 minutes past 5 o'clock in the afternoon, at which time the
company was engaged in telegraphing for the public, the plaintiff
delivered to its agent at its office in Shelbyville the following
telegram for transmission to its office in Ottumwa,
viz.,
"April 14, 1883"
"To Rosa Pendleton, care James Harker, near City grave-Yard,
Ottumwa, Iowa:"
"Have you shipped things? If not, don't ship. Answer quick."
"WM. PENDLETON"
"That, upon its delivery, the plaintiff paid the agent sixty
cents, being the amount of the charge required for its transmission
from Shelbyville to Ottumwa; that, without any fault or
interference on his part, the company, after transmitting the
message to Ottumwa, where it was received at half past seven in the
afternoon of that day, failed to deliver it either to Rosa
Pendleton or to James Harker, whereby the plaintiff sustained
damage and the defendant became liable for $100 under the statute
of Indiana, for which sum plaintiff demands judgment."
To this complaint the company answered, admitting the receipt of
the telegram as alleged and setting up that it transmitted the
message with impartiality and good faith, in the order of time in
which it was received, and without delay, to its office in Ottumwa,
Iowa, where it was received, as alleged at half past seven of that
day; that James Harker, to whose care the message was directed,
lived more than one mile from the telegraph station at Ottumwa;
that, in accordance with the usual custom of the office, the
message was without delay placed in the post office of that town,
with proper stamp thereon, and duly addressed, and that the
telegram was received by the person to whom it was addressed on the
following morning, April 15, 1883 at about 9 o'clock.
The answer further set forth that the duties and liabilities of
telegraph companies in Iowa, and the transmission and delivery of
the telegrams within the state, are regulated by a
Page 122 U. S. 350
special statute of that state, which is as follows,
viz.:
"Any person employed in transmitting messages by telegraph must
do so without unreasonable delay, and anyone who willfully fails
thus to transmit them, or who intentionally transmits a message
erroneously, or makes known the contents of any message sent or
received to any person except him to whom it is addressed or to his
agent or attorney, is guilty of a misdemeanor. The proprietor of a
telegraph is liable for all mistakes in transmitting messages made
by any person in his employment and for all damages resulting from
a failure to perform any other duties required by law."
That by that statute, the defendant was not required to deliver
telegrams by messenger to the persons to whom they were addressed.
That in the City of Ottumwa it had established a certain district
within which it delivered telegrams by messenger, and that, on the
receipt of the telegram in question at Ottumwa, it was ascertained
that Harker, to whose care it was addressed, did not reside within
the delivery district, but outside of it, and more than one mile
from the defendant's office, and that, in accordance with the
custom and usage of the office and in order to facilitate the
delivery of the message, a copy of the telegram was promptly placed
in the post office at Ottumwa, with proper address, and delivered
as stated above.
To this answer the plaintiff demurred, the circuit court of the
state sustained the demurrer, and, the defendant electing to stand
upon its answer, judgment was rendered for the plaintiff for $100,
which, on appeal to the supreme court of the state, was affirmed,
and the company brings the case here for review.
Page 122 U. S. 356
MR. JUSTICE FIELD, after stating the case as above, delivered
the opinion of the Court as follows:
The contention of the Western Union Telegraph Company is that
the law of Indiana is in conflict with the clause of the
Constitution vesting in Congress the power to regulate commerce
among the states.
In
Telegraph Co. v. Texas, 105 U.
S. 460, it was decided by this Court that intercourse by
the telegraph between the states is interstate commerce. Its
language was:
"A telegraph company occupies the same relation to commerce, as
a carrier of messages, that a railroad company does as a carrier of
goods. Both companies are instruments of commerce, and their
business is commerce itself. They do their transportation in
different ways, and their liabilities are, in some respects,
different, but they are both indispensable to those engaged to any
considerable extent in commercial pursuits."
Although intercourse by telegraphic messages between the states
is thus held to be interstate commerce, it differs in material
particulars from that portion of commerce with foreign countries
and between the states which consists in the carriage of persons
and the transportation and exchange of commodities, upon which we
have been so often called to pass. It differs not only in the
subjects which it transmits, but in the means of transmission.
Other commerce deals only with persons or with visible and tangible
things. But the telegraph transports nothing visible and tangible;
it carries only ideas, wishes, orders, and intelligence. Other
commerce requires the constant attention and supervision of the
carrier for the safety of the persons and property carried. The
message of the telegraph passes at once beyond the control of the
sender, and reaches the office to which it is sent instantaneously.
It is plain from these essentially different characteristics
that
Page 122 U. S. 357
the regulations suitable for one of these kinds of commerce
would be entirely inapplicable to the other.
In the consideration of numerous cases in which questions have
arisen relating to ordinary commerce with foreign countries and
between the states, this Court has reached certain conclusions as
to what subjects of commerce the regulation of Congress is
exclusive, and indicated on what subjects the states may exercise a
concurrent authority until Congress intervenes and assumes control.
Cooley v. Board of Wardens of
the Port of Philadelphia, 12 How. 299;
Gilman v.
Philadelphia, 3 Wall. 713;
Crandall v.
Nevada, 6 Wall. 35;
Welton v. Missouri,
91 U. S. 275;
Henderson v. Mayor of New York, 92 U. S.
259;
Inman Steamship Co. v. Tinker,
94 U. S. 238;
Hall v. De Cuir, 95 U. S. 485;
County of Mobile v. Kimball, 102 U.
S. 691;
Transportation Co. v. Parkersburgh,
107 U. S. 691;
Gloucester Ferry Co. v. Pennsylvania, 114 U.
S. 196;
Wabash, St. Louis & Pacific Railway Co.
v. Illinois, 118 U. S. 557, and
Robbins v. Shelby Taxing District, 120 U.
S. 489,
120 U. S. 493.
But with reference to the new species of commerce consisting of
intercourse by telegraphic messages, this Court has only in two
cases been called upon to inquire into the power of Congress and of
the state over the subject.
In Pensacola Telegraph Co. v.
Western Union Telegraph Co., 96 U. S. 1, this
Court had before it the Act of Congress of July 24, 1866, 14 Stat.
221, "to aid in the construction of telegraph lines, and to secure
the use of the same for postal, military, and other purposes," and
it held that the act was constitutional so far as it declared that
the erection of telegraph wires should, as against state
interference, be free to all who accepted its terms and conditions,
and that a telegraph company of one state accepting them could not
be excluded by another state from prosecuting its business within
her jurisdiction. In
Telegraph Company v. Texas,
105 U. S. 460,
from the opinion in which we have quoted above, it was held that a
statute of Texas imposing a tax upon every message transmitted by a
telegraph company doing business within its limits, so far as it
operated on messages sent out of the state, was a regulation of
foreign and interstate commerce, and therefore beyond the power of
the state.
Page 122 U. S. 358
In these cases, the supreme authority of Congress over the
subject of commerce by the telegraph with foreign countries or
among the states is affirmed whenever that body chooses to exert
its power, and it is also held that the states can impose no
impediments to the freedom of that commerce. In conformity with
these views, the attempted regulation by Indiana of the mode in
which messages sent by telegraphic companies doing business within
her limits shall be delivered in other states cannot be upheld. It
is an impediment to the freedom of that form of interstate
commerce, which is as much beyond the power of Indiana to interpose
as the imposition of a tax by the State of Texas upon every message
transmitted by a telegraph company within her limits to other
states was beyond her power. Whatever authority the state may
possess over the transmission and delivery of messages by telegraph
companies within her limits, it does not extend to the delivery of
messages in other states.
The object of vesting the power to regulate commerce in Congress
was to secure with reference to its subjects uniform regulations,
where such uniformity is practicable, against conflicting state
legislation. Such conflicting legislation would inevitably follow
with reference to telegraphic communications between citizens of
different states if each state was vested with power to control
them beyond its own limits. The manner and order of the delivery of
telegrams as well as of their transmission would vary according to
the judgment of each state. Indiana, as seen by its law given
above, has provided that communications for or from officers of
justice shall take precedence, and that arrangements may be made
with publishers of newspapers for the transmission of intelligence
of general and public interest out of its order, but that all other
messages shall be transmitted in the order in which they are
received, and punishes as an offense a disregard of this rule. Her
attempt by penal statutes to enforce a delivery of such messages in
other states in conformity with this rule could hardly fail to lead
to collision with their statutes. Other states might well direct
that telegrams on many other subjects should have precedence in
delivery within their limits over
Page 122 U. S. 359
some of these, such as telegrams for the attendance of
physicians and surgeons in case of sudden sickness or accident,
telegrams calling for aid in case of fire or other calamity, and
telegrams respecting the sickness or death of relatives.
Indiana also requires telegrams to be delivered by messengers to
the person to whom they are addressed if they reside within one
mile of the telegraph station or within the city and town in which
such station is, and the requirement applies, according to the
decision of its supreme court in this case, when the delivery is to
be made in another state. Other states might conclude that the
delivery by messenger to a person living in a town or city being
many miles in extent was an unwise burden, and require the duty
within less limits, but if the law of one state can prescribe the
order and manner of delivery in another state, the receiver of the
message would often find himself incurring a penalty because of
conflicting laws, both of which he could not obey. Conflict and
confusion would only follow the attempted exercise of such a power.
We are clear that it does not exist in any state.
The Supreme Court of Indiana placed its decision in support of
the statute principally upon the ground that it was the exercise of
the police power of the state. Undoubtedly, under the reserved
powers of the state which are designated under that somewhat
ambiguous term of "police powers," regulations may be prescribed by
the state for the good order, peace, and protection of the
community. The subjects upon which the state may act are almost
infinite, yet in its regulations with respect to all of them there
is this necessary limitation: that the state does not thereby
encroach upon the free exercise of the power vested in Congress by
the Constitution. Within that limitation, it may undoubtedly make
all necessary provisions with respect to the buildings, poles, and
wires of telegraph companies in its jurisdiction which the comfort
and convenience of the community may require.
It follows from the views expressed that
The judgment of the court below must be reversed and the
cause remanded for further proceedings not inconsistent with this
opinion, and it is so ordered.
