Where the highest court of the state has refused a writ of error
because it thought the judgment of the court below was right, the
writ of error from this Court lies to the highest state court to
which the case could be carried.
Telegraph companies whose lines extend from one state to another
are engaged in interstate commerce, and messages passing from one
state to another constitute such commerce, and companies and
messages both fall under the regulating power of Congress.
While a state statute which amounts to a regulation of
interstate commerce is void, one which simply imposes a penalty on
a telegraph company for failure to perform a clear common law duty,
such as transmitting messages without unreasonable delay, is, in
the absence of legislation by Congress on that subject, a valid
exercise of the power of the state if it relates to delay within
the state even though the message be to a point without the state.
Such a statute is neither a regulation of nor hindrance to
interstate commerce, but is in aid thereof, and so
held as
to the statute of Virginia to that effect.
The facts, which involve the constitutionality, under the
commerce clause, of a statute of Virginia requiring prompt
transmission of messages by telegraph companies, are stated in the
opinion.
Page 220 U. S. 366
MR. JUSTICE LURTON delivered the opinion of the Court.
Action to recover statutory penalty for the negligent failure to
promptly transmit a prepaid message accepted at the Richmond office
of the telegraph company, addressed to a business correspondent at
Brockton, New York. The declaration averred that the negligence
occurred in the office at Richmond.
There was issue joined and a jury. The defendant demurred to the
evidence. This was overruled because the court was of opinion that
from the facts and circumstances, the jury might find that the
negligence in transmission occurred in the sending office at
Richmond. There was a verdict and judgment for the plaintiff.
A writ of error was denied by the Supreme Court of Appeals,
under local practice, because the court thought "the judgment was
plainly right."
The plaintiff in error has sued out two writs of error: one to
the law and equity court of the City of Richmond, the trial court,
and another to the Supreme Court of Appeals of Virginia. Inasmuch
as the latter court denied a writ of error, the judgment of the law
and equity court was the highest court of the state to which the
case could be carried, and a writ will therefore lie to that court
if a federal question is properly saved.
The statute which it is claimed operates as a regulation
Page 220 U. S. 367
of interstate commerce, and under which the action was brought,
is set out in the margin.
*
It makes it the duty of every telegraph company doing business
in the state to receive and transmit prepaid messages "faithfully,
impartially, with substantial accuracy, as promptly as
practicable." But the standard of duty under the statute is
precisely that imposed at common law upon such a common carrier.
The imposition of a penalty for the purpose of enforcing the
statute was plainly within the legislative power of the state if
the act was otherwise valid.
Ling Su Fan v. United States,
218 U. S. 302, 306
[argument of counsel -- omitted].
But it is said the act requires that messages shall be
transmitted in the order received, though preference may be given
to business of the United States, the state, and the public press,
and that this is a regulation which may conflict with a different
rule prescribed by other states,
Page 220 U. S. 368
and may constitute a hindrance and impediment to interstate
commerce.
It is not clear that such result may follow if the act be
regarded as applying only to dispatches received within the state,
although destined to persons beyond the state. The act, unlike the
Indiana statute involved in the
Pendleton case,
122 U. S. 347,
neither regulates delivery in nor out of the state, and prescribes
no preference in transmission. The company is permitted to give
certain preferences named, but is not required to do so.
But we are not called upon to consider whether that particular
requirement, one separable from all the others, is valid or not.
The single ground of action stated in the plaintiff's declaration
was that his prepaid message had not been transmitted "as promptly
as practicable," and that this was due to negligence within the
state.
The duty of transmitting without unreasonable delay was, as
already stated, the clear common law duty of the company -- a duty
to which the statute adds only the imposition of a penalty for
default. The issue of fact in the state court was whether the
delay, however caused, occurred within the limits of the state.
Stated more definitely, it was whether the fault was that of the
Richmond office, which accepted the message, or that of the New
York office, where it is said the message must be relaid over
another wire to reach either Brockton or Brooklyn in the State of
New York. The indisputable fact was that a message addressed to
Brockton, New York, was sent to Brooklyn, New York. Somebody
somewhere made a blunder, by which there occurred delay in the
proper transmission of the message. Now, if that mistake was made
at Richmond, the negligence occurred within the limits of the
state. If it was correctly sent to the relay point, and the mistake
occurred in relaying, the negligence occurred beyond the limits of
the state, and the failure to
Page 220 U. S. 369
transmit "as promptly as practicable" did not occur within the
state limits.
This issue of fact has been found against the plaintiff in
error. Nine hours after the message was accepted, the plaintiff
received a written notice in these words:
"
THE WESTERN UNION TELEGRAPH COMPANY
(Incorporated.)"
"Richmond, Va. Sept. 25, 1907"
"M. CROVO AND CRENSHAW:"
"Your dispatch dated today to S. P. Morse & Sons, Brooklyn,
New York, is undelivered."
"Reason: Unable to locate party. Give better address."
"A. C. STEVENTON"
"
Per C.,"
"Manager, Richmond, Va., office"
The manager of the company's office at Richmond testified that
the notice above set out,
"sent to the plaintiff in the usual and ordinary course of
business, meant that the message was sent from Richmond, Virginia,
to Brooklyn, New York, and not to Brockton, New York."
The only question for decision is whether a statute of the State
of Virginia which imposes a penalty for the failure to transmit a
dispatch received at an office of the company in the state, for
transmission to a person in another state, is a valid exercise of
the power of the state, the delay occurring in the state.
That companies engaged in the telegraph business, whose lines
extend from one state to another, are engaged in interstate
commerce, and that messages passing from one state to another
constitute such commerce, is indisputable. Such companies and such
messages come therefore under the regulating power of Congress. It
follows, then, that, if this statute as applied in the state court
is to be construed as a regulation of commerce between the states,
it is in excess of the power of the state.
Page 220 U. S. 370
Western Union Telegraph Co. v. Texas, 105 U.
S. 460;
Western Union Telegraph Co. v.
Pendleton, 122 U. S. 347;
Western Union Telegraph Co. v. James, 162 U.
S. 650;
Western Union Telegraph Co. v. Commercial
Mill. Co., 218 U. S. 406,
218 U. S.
416.
In the
Pendleton case, a statute of Indiana which
imposed a penalty for the failure to deliver by messenger a
dispatch sent by the sender in Indiana to a person addressed at a
station in Iowa, was held an attempt to regulate the method of
delivery outside of the state, and therefore an interference with
and regulation of interstate commerce.
In the
James case, a statute of Georgia which imposed a
penalty for the failure to diligently deliver to the person
addressed in Georgia an interstate message was upheld as a valid
exercise of state power, in the absence of legislation upon the
subject by Congress. In that case, the Court, by Mr. Justice
Peckham, distinguished the
Pendleton case, saying:
"Nor is the statute open to the same objections that were
regarded as fatal in the
Pendleton case,
supra.
No attempt is here made to enforce the provisions of the state
statute beyond the limits of the state, and no other state could,
by legislative enactment, affect in any degree the duty of the
company in relation to the delivery of messages within the limits
of the State of Georgia. No confusion therefore could be expected
in carrying out within the limits of that state the provisions of
the statute. It is true it provides a penalty for a violation of
its terms, and permits a recovery of the amount thereof,
irrespective of the question whether any actual damages have been
sustained by the individual who brings the suit; but that is only a
matter in aid of the performance of the general duty owed by the
company. It is not a regulation of commerce, but a provision which
only incidentally affects it. We do not mean to be understood as
holding that any state law on this subject would be valid, even in
the
Page 220 U. S. 371
absence of congressional legislation, if the penalty provided
were so grossly excessive that the necessary operation of such
legislation would be to impede interstate commerce. Our decision in
this case would form no precedent for holding valid such
legislation. It might then be urged that legislation of that
character was not in aid of commerce, but was of a nature well
calculated to harass and to impede it. While the penalty in the
present statute is quite ample for a mere neglect to deliver in
some cases, we cannot say that it is so unreasonable as to be
outside of and beyond the jurisdiction of the state to enact."
"While it is vitally important that commerce between the states
should be unembarrassed by vexatious state regulations regarding
it, yet, on the other hand, there are many occasions where the
police power of the state can be properly exercised to insure a
faithful and prompt performance of duty, within the limits of the
state, upon the part of those who are engaged in interstate
commerce. We think the statute in question is one of that class,
and in the absence of any legislation by Congress, the statute is a
valid exercise of the power of the state over the subject."
In
Western Union Telegraph Co. v. Commercial Mill. Co.
supra, a statute of Michigan which prohibited contractual
limitation of the common law liability due to the negligence of the
company in transmission or delivery was upheld as applied to a
message received at the company's office in Michigan for
transmission to a person in another state. Distinguishing the
Pendleton case, MR. JUSTICE McKENNA, for this Court,
said:
"But there is a manifest difference between the statute of
Indiana and the statute of Michigan, and of their purposes and
effects. The former imposed affirmative duties and regulated the
performance of the business of the telegraph company. It besides
ignored the requirements or
Page 220 U. S. 372
regulations of another state, made its laws paramount to the
laws of another state, gave an action for damages against the
permission of such laws for acts done within their jurisdiction.
Such a statute was plainly a regulation of interstate commerce, and
exhibited in a conspicuous degree the evils of such interference by
a state, and the necessity of one uniform plan of regulation. The
statute of Michigan has no such objectionable qualities. It imposes
no additional duty. It gives sanction only to an inherent duty. It
declares that in the performance of a service public in its nature,
that it is a policy of the state that there shall be no contract
against negligence. The prohibition of the statute therefore
entails no burden. It permits no release from that duty in the
public service which men in their intercourse must observe -- the
duty of observing the degree of care and vigilance which the
circumstances justly demand, to avoid injury to another."
The requirement of the Virginia statute as here applied is a
valid exercise of the power of the state, in the absence of
legislation by Congress. It is neither a regulation of, nor a
hindrance to, interstate commerce, but is in aid of that
commerce.
The case is clearly governed by
Western Union Telegraph Co.
v. James and
Western Union Telegraph Co. v. Commercial
Mill. Co., both above cited.
Judgment affirmed.
*
"It shall be the duty of every telegraph company doing business
in this state to receive and transmit dispatches from and for other
telegraph or telephone companies or lines, and from and for any
person, upon the payment of the usual charges therefor, if such
payment is demanded; to transmit the same faithfully, impartially,
with substantial accuracy, as promptly as practicable and in the
order of delivery to the said company. For every failure to
transmit a dispatch faithfully, impartially, with substantial
accuracy, and for every failure to transmit a dispatch as promptly
as practicable, or in the order of its delivery to the company, the
company shall forfeit the sum of $100 to the person sending or
offering to send such dispatch, or to the person whom it was
addressed: Provided, however, that not more than one recovery shall
be had on one dispatch, and the recovery by one party entitled
thereto shall be a bar to the recovery of the other party. But
nothing herein shall prevent any such company from giving
preference to dispatches on official business from or to officers
of the United States or the State of Virginia, or from making
arrangements with proprietors or publishers of newspapers for the
transmission to them for publication of intelligence of general and
public interest out of its regular order."