structed, maintained and operated its road, and transacted business under municipal ordinances, and has thereafter accepted the provisions of the Post Roads Act, then it follows that State and local legislation is void and inoperative, in so far as it conflicts with matters of interstate commerce or matters over which Congress has direct and supreme control, conferred on it by the Constitution of the United States.19 We have also

seen that the police power cannot encroach upon the powers of the Federal Government in respect to interstate commerce and its constitutional regulation by Congress. 20 Again, an ordinance is invalid and clearly in violation of the act of Congress which does not exclude in its scheme of taxation of messages, or license-fee for business, Government telegrams received by officers or agents of the United States.21 In determining whether a State legislative enactment constitutes an interference with National authority, or whether the power of the State has been lawfully exercised in the protection of public interests or the promotion of public convenience, it is proper for the court to consider as a factor the reasonableness or unreasonableness of a statute.22

§ 66. Post Roads Act exclusive - Hostile legislation continued Modification of rule. The United States Supreme Court has classified its adjudications with respect to the power over the general subject of commerce, into three classes. "First, those in which the power of the State is exclusive; second, those in which the State may act in the absence of legislation by Congress; third, those in which the action of Congress is exclusive, and the State cannot interfere at all." 23 Mr. Justice Peckham, in considering this classification, says, of the powers of Congress, in cases of the second class, it is asserted "that it is not its mere existence, but its exercise by Congress, which may be incompatible with the exercise of the same power by States, and that the States may legislate in the

Justice Miller, to the point that the State cannot interfere by specific statute to prevent a corporation from placing its lines along post roads, "or stop the use of them after they were placed there," but might tax, etc. See § 55 herein.

20 See § 63 herein, and see chap. XIV, post, herein, as to police pow

ers.

21 City Council of Charleston v. Postal Teleg. Cable Co. (Ct. Com. Pl., So. Car., 1891), 9 Ry. & Corp. L. Jour. 129, 3 Am. Elec. Cas. 56, 65. See chaps. VII and VIII, post,

herein, as to license or privilege tax, taxation.

22 Lake Shore & M. S. R. Co. v. Ohio, Lawrence, 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702, affg. 56 Ohio St. 736, and 8 Ohio C. C. 220.

23 Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204, 209, 14 Sup. Ct. 1087, 38 L. Ed. 962, per Mr. Justice Brown, quoted in Western Un. Teleg. Co. v. James, 162 L. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, 6 Am. Elec. Cas. 858, 863, per Mr. Justice Peckham.

" 24

absence of congressional regulations. The same justice also says, in the same case, "In regard to those matters relating to commerce, which are not of a nature to be affected by locality, but which necessarily ought to be the same over the whole country, it has been frequently held that the silence of Congress upon such a subject, over which it had unquestioned. jurisdiction, was equivalent to a declaration that in those respects commerce should be free and unregulated by any statutory enactment.25 The matters upon which the silence of Congress is equivalent to affirmative legislation are National in their character, and such as to fairly require uniformity of regulation upon the subject-matter affecting all the States alike." 26 So, again, "where the subjects in regard to which the laws are enacted, instead of being of a local nature affecting interstate commerce, but incidentally are National in their character, then the non-action of Congress indicates its will that such commerce shall be free and untrammeled." The above arguments were in answer to a claim that the absence of legislation by Congress, expressly providing a penalty for a failure to deliver telegraphic messages impartially, and with due diligence, was equivalent to a declaration by Congress that no penalty should be affixed, and that the company should be left free to pursue its business untrammeled by any State legislation on the subject. It was held, however, that such penalty statute was within the police power of the State to enact in relation to messages from points outside to points within the State, and was not in conflict with the interstate commerce constitutional provision of the United States. 27

24 Citing Sturges V. Crowninshield, 4 Wheat. (U. S.) 122, 193, 4 L. Ed. 529.

25 Citing Welton v. Missouri, 91 U. S. 275, 282, 23 L. Ed. 550; Hall v. De Cuir, 95 U. S. 485, 490, 24 L. Ed. 547.

20 Citing Mobile County v. Kimball, 102 U. S. 691, 26 L. Ed. 238. 27 Western Un. Teleg. Co. V. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, 6 Am. Elec. Cas. 858, 862, 863, two justices dis

sented. See chap. IX, herein. See Western Un. Teleg. Co. v. Mellon, 100 Tenn. 429, 45 S. W. 443, as to the effect of inaction or silence by Congress, not justifying legislation by States where the subject is one requiring uniform legislation. See 4 Elliott on Railroads (ed. 1897), § 1671, p. 2656, citing numerous cases. See Escanaba Co. v. Chicago, 107 U. S. 678, 27 L. Ed. 442, 2 Sup. Ct. 185; United States V. Bellingham Bay, etc. (C. C., D.

§ 67. Post Roads Act, modification of the rule as to hostile legislation continued. The rule which excludes legislation, by the State or local government hostile to the Post Roads Act and interstate provisions, does not include legislation which is a mere aid to commerce, although it incidentally affects it and persons engaged therein. Such an enactment is not necessarily a regulation of commerce within the meaning of the Constitution of the United States. Congress has been invested with exclusive legislative power to enact statutes to secure uniformity in commercial regulations, not only affecting one State, but extending throughout the States. The application, however, of a rule which may only incidentally affect commerce and persons engaged therein, is not, of necessity, hostile legislation. This is illustrated by the case of a telegraphic statute requiring, under penalty, the delivery of messages impartially, and with due diligence within the State. Such a statute has been held by eminent authority to be within the police power of the State to enact, and that it does not conflict with the interstate commerce clause of the Constitution, even though it relates to messages delivered within the State, from points outside. But a State statute must not be such a one that, while it purports to affect telegraph companies and their business within State lines, it nevertheless influences to some degree the conduct of the company in the management of telegraphic business in other States through which that line passes.28 Another state

Wash.), 72 Fed. 585; Philadelphia, etc., Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. Ed. 1200; Hamilton v. Vicksburg S. & P. R. Co., 119 U. S. 281, 282, 7 Sup. Ct. 206, 30 L. Ed. 393; Albany Bridge Case, 2 Wall. (U. S.) 403; Robbins v. Shelby Tax Dist., 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694; Cooley on Const. Lim. (6th ed., 1890), p. 728, citing Wilson V. Black Bird Creek Marsh Co., 2 Pet. (U. S.) 245, 7 L. Ed. 412; Wheeling Bridge Case, 13 How. (U. S.) 518, 14 L. Ed. 249, and 18 How. (U. S.) 421, 15 L. Ed. 435; Williamette Iron B. Co. v. Hatch, 125

U. S. 1, 8 Sup. Ct. 811, 31 L. Ed. 629, and other cases. See chap. VI, herein, "Post Roads Actcommerce, bridges."

28 Western Un. Teleg. Co. V. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, 6 Am. Elec. Cas. 858, 863, et seq., per Mr. Jus tice Peckham, citing Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; State Tax on Railway Gross Receipts, 15 Wall. (U. S.) 284, 21 L. Ed. 164; Mobile County v. Kimball, 102 U. S. 691, 26 L. Ed. 238; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564; Hall v. De Cuir, 95 U. S. 485, 489, 24 L. Ed. 547.

ment of the rule is this: Telegraph companies engaged in interstate commerce, and exercising Federal agencies under the grant or privileges conferred by the Post Roads Act are subject to the operation of the laws of the State, and of the rules, regulations, and the exercise of police power of the governmental locality wherein they are located or carry on their business. But when those laws, rules, regulations, or the unlawful exercise of police power incapacitates or unreasonably impedes such companies in the rightful legal exercise of their Federal privileges or duties, and transcends the powers which the State or local government possesses over its purely domestic affairs, whether of police or internal commerce, then the National jurisdiction is invaded.29

We may here repeat what we have so often said before, that this exemption of interstate and foreign commerce from State regulation does not prevent the States

from regulating matters of local concern, which may incidentally affect commerce." Leloup v. Port of Mobile, 127 U. S. 640, 32 L. Ed. 311, 8 Sup. Ct. 1380, 21 Am. & Eng. Corp. Cas. 26, 12 Inter. Com. Rep. 134, 2 Am. Elec. Cas. 79, 87, per Mr. Justice Bradley. That regulations may be passed affecting interstate commerce incidentally so far as railroad corporations are concerned, in States where corporation is created, see Lake Shore & M. S. R. Co. v. Ohio, Lawrence, 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702, affg. 56 Ohio St. 736, and 8 Ohio C. C. 220.

29 Western Un. Teleg. Co. v. May

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, 199, 200, per Wallace, J. (the text is substantially the language of the court), citing Patterson v. Kentucky, 97 U. S. 501, 504, 24 L. Ed. 1115. The principal case was one relating to the validity of the New York Subways Acts (Laws 1884, c. 534, Laws 1885, c. 499, and Laws 1887, c. 716); held valid. This case is cited with approval in State ex rel. Wisconsin Teleph. Co. V. Jamesville 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 also Western Un. Teleg. Co. v. Mississippi R. Commission, 74 Miss. 80, 21 So. 15.

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