State Constitution conflict with the interstate commerce provision of the Federal Constitution.60

Commerce

Federal Constitution

§ 57. Tariff or rates for telegraph or telephone.- A State has power to authorize a board of railroad commissioners to make rates for the transmission of messages by telegraph lines doing business within the State, and telegraphic messages are not interstate commerce when transmitted over a continuous line or system of lines connecting two points within the same State, even though said line is not wholly within said State. Said statute does not, therefore, violate the interstate commerce provision of the Federal Constitution.61 But a State cannot control rates of interstate commerce originating within a State by a division thereof, upon a mileage basis calculated to reach that portion within the State.62 In Indiana a telephone company doing a general business, and having a line of wires wholly or partly within the State may be compelled by statute to furnish facilities. to all persons, without discrimination, within local limits. The legislature may also require a maximum rate for telephone rental. Both statutes are to be construed together, nor do they constitute an interference with interstate commerce where the intent is merely to regulate the service within the State, and this is so, even though the company's lines extend into other States.63 So maximum telephone rates may be prescribed by statute, and the act will not be held unconstitutional as depriving the company of its property or use without just compensa

60 Western Un. Teleg. Co. v. Eubank, 100 Ky. 591, 18 Ky. L. Repr. 995, 36 L. R. A. 711, 38 S. W. 1068, 6 Am. Elec. Cas. 770, 1 Am. Neg. Rep. 244. Citing Ohio & Miss. Ry. Co. v. Tabor, 17 Ky. Law R. 1411, 36 S. W. 18, for a fuller discussion of said section, being section 196, Kentucky Constitution. As to validity of stipulations against negligence, the reader is referred to this subject, which is fully considered elsewhere.

61 State, Railroad Commissioners v. Western Un. Teleg. Co., 113 N.

C. 213, 4 Am. Elec. Cas. 586, 18 S.
E. 389; Leavell v. Western Un.
Teleg. Co., 116 N. C. 211, 5 Am.
Elec. Cas. 689, 21 S. E. 391.

62 Northern Pacific R. Co. V. Keyes (U. S. C. C., N. D. Dak.), 91 Fed. 47, 13 Am. & Eng. R. Cas. (N. S.) 128.

63 Central Un. Teleph. Co. V. State, Falley, 118 Ind. 194, 2 Am. Elec. Cas. 27. See Central Un. Teleph. Co. v. Bradbury, 106 Ind. 1, 2 Am. Elec. Cas. 14, 5 N. E. 721; Johnson v. State, 113 Ind. 143, 2 Am. Elec. Cas. 22, 15 N. E. 215.

tion, on the ground that said rates are insufficient or unremunerative, especially so where the only evidence of such facts are ex parte affidavits of the company's officers.64

§ 62. Post Roads Act-Authority conferred.- The Post Roads Act1 confers a right and not a mere privilege to construct, maintain and operate telegraph lines in the manner provided, and upon, over and along the places specified. A plenary power is granted for the benefit of the public and of the Government of the United States, having in view the growing necessities of commerce and the needs of the postal service.2 But while the statute confers this right it may not be exercised absolutely and under all circumstances. It cannot, as will hereafter appear, be taken away by hostile State legislation,3 nor can such legislation operate to prevent placing telegraph lines upon, over, along, or under, the places designated in said Post Roads Act. Nor after such lines are located there, may the use of them be stopped by State or municipal legislation. Nevertheless, the right conferred is limited or abridged to this extent, that the statute is permissive only in many respects.*

1 Act July 24, 1866.

2 Hewett v. Western Un. Teleg. Co., and Dist. Col., 4 Mackey (D. C.), 424, 16 Am. & Eng. Corp. Cas. 276, 2 Cent. Repr. 694, 2 Am. Elec. Cas. 222, 225, 226, per Merrick, J. 3 See §§ 65-67 herein.

4 St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 37 L. Ed. 380, 39 Fed. 59, 4 Am. Elec. Cas. 102, 111, 13 Sup. Ct. 485, per Mr. Justice Brewer, citing with approval, Western Un. Teleg. Co. v. AttorneyGeneral of Mass., 125 U. S. 530,

The Post Roads Act being permissive only, it was never intended to interfere with the proper regulation and control of such highways by the States, counties, or municipalities which had them in charge, and such statute also expressly provides that such telegraph lines shall be so maintained as not to "interfere with the ordinary travel on such military or post roads." 5

§ 63. Post Roads Act-Limitations upon authority or right conferred. The authority conferred under the Post Roads Act is subordinated in its exercise to the rights of the public to a certain extent, and also to the exercise, within lawful limits, of the police power of the State or municipality which the telegraph company has entered for the purpose of constructing its lines. Such company must submit to the ordinary, reasonable and lawful regulations of the State and local governmental authorities whose highways and streets are used, even though said roads and streets are post and military roads. But, on the other side, although the State may, in the exercise of its police power, enact such laws relating to persons and property within its territorial limits as shall best promote general prosperity, and the public health, safety and morals, nevertheless, it cannot encroach upon the powers of the Federal Government so as to materially impair or destroy rights granted or secured by constitutional acts of Congress, or

548, 31 L. Ed. 790, 8 Sup. Ct. 961, 21 Am. & Eng. Corp. Cas. 13, 2 Am. Elec. Cas. 57, 61, per Mr. Justice Miller; Southern Bell Teleph. & Teleg. Co. v. Richmond (C. C., E. D. Va.), 78 Fed. 858, 6 Am. Elec. Cas. 1, 6, per Goff, Cir. J.

"Acts of Congress are only permissive so far as the rights of the federal government go." Postal Teleg. Cable Co. v. City of Newport, 25 Ky. L. Rep. 635, 76 S. W. 159, 8 Am. Elec. Cas. 25, 27, per Hobson, J.

5 Ganz v. Ohio Postal Teleg. Cable Co., 140 Fed. 692, rev'g Ohio

Postal Teleg. Cable Co. v. Board of
Commissioners, 137 Fed. 947.

• Richmond V. Southern Bell Teleph. & Teleg. Co., 42 U. S. App. 686, 28 U. S. C. C. A. 659, 85 Fed. 19, 30 Chic. Leg. News, 271, 3 Va. La. Reg. 856; Southern Bell Teleph. & Teleg. Co. v. Richmond, 78 Fed. 858, 6 Am. Elec. Cas. 1, 6, per Goff, Cir. J.; Clausen, etc., Brewing Co. v. The Baltimore & Ohio Teleg. Co. (N. Y. Sup. Ct., Chambers, 1884), 2 Am. Elec. Cas. 210, 217, per Van Brunt, J.; Mutual Un. Teleg. Co. v. Chicago, 16 Fed. 309, 1 Am. Elec. Cas. 506, 507, per Drummond, J.

granted under a constitutional exercise of power. Especially is this true of the constitutional right to regulate commerce." It is held, however, in a case in the United States Circuit Court that the police power is inherent in the States, and is not affected by the United States interstate commerce provision, nor by the Post Roads Act. These two propositions, although seemingly inconsistent, are perfectly reconcilable.

It

is well settled that the police power extends to the protection of life, health, and property, and that no citizen should be permitted to exercise his rights so as to injuriously affect a community in these matters. A strictly legitimate exercise of the police power of a State does not, in a constitutional sense, necessarily encroach upon any authority confided expressly or by implication to the National Government. In addition, the exercise of the police power in the last case above noted, related to the enforcement of the Subway Act in the city of New York.10 The franchise of a telegraph company is derived from the State, and it owes its existence to the State law of organization, even though its privilege of running lines over post and military rodas is derived from Congress.11 A

7 Western Un. Teleg. Co. V. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, 6 Am. Elec. Cas. 858, 861, 16 Sup. Ct. 934, per Mr. Justice Peckham; People v. Hawkins, 20 N. Y. App. Div. 47 N. Y. Supp. 56, 494, 47 N. Y. Supp. 56, citing Walling v. Michigan, 116 U. S. 446-460, 29 L. Ed. 691, 696, 6 Sup. Ct. 454; People v. Gillson, 109 N. Y. 389-401, 4 Am. St. Rep. 465, 17 N. E. 343; New Orleans GasLight Co. v. Louisiana L. & H. P. & Mfg. Co., 115 U. S. 650, 29 L. Ed. 516, 6 Sup. Ct. 252; Brennan V. Titusville, 153 U. S. 289-299, 4 Inter. Com. Rep. 658, 38 L. Ed. 719, 722, 14 Sup. Ct. 829; Re Jacobs, 98 N. Y. 98-108, 50 Am. St. Rep. 636. See 88 65-67, chaps. IX, XIV, XXXII, XXXIV, herein, post, as to hostile legislation.

* Western Un. Teleg. Co. v. May

9

or of New York, 38 Fed. 552, 2 Inter. Com. Rep. 533, 3 L. R. A. 449, 6 Ry. & Corp. L. Jour. 105, 2 Am. Elec. Cas. 195.

9 Laws N. Y. 1884, c. 534; Laws 1885, c. 499, and Laws 1887, c. 716.

10 The case last given is cited with approval in State ex rel. Wisconsin Teleph. Co. v. Janesville St. Ry. Co., 87 Wis. 72, 41 Am. St. Rep. 23, 4 Am. Elec. Cas. 289, 294, 57 N. W. 970, per Orton, C. J., where several other cases to the same point are also cited. See Western Un. Teleg. Co. v. Mississippi R. Commission, 74 Miss. 80, 21 So. 15; see also § 67 herein.

11 Western Un. Teleg. Co. v. Attorney-General of Mass., 125 U. S. 530, 548, 31 L. Ed. 790, 8 Sup. Ct. 961, 21 Am. & Eng. Corp. Cas. 13, 2 Am. Elec. Cas. 57, 60, 61, per Mr.