in other States. And other cases in the same State hold such a penalty statute valid."

§ 116. Commerce - Federal Constitution - Penalty statutes - Telegraphic despatches - Indiana.- In Indiana the penalty statute for such default does not, it is held, apply to messages originating without the State, but only to contracts made within the State. The complaint in this case alleged a contract for transmission made in Ohio, and a failure to deliver the message in Indiana to the person to whom it was directed to be sent, and the court said that any other rule than that above stated would make the telegraph company amenable to different punishments for the same wrong, in that a judgment. in one State would be no defense to a prosecution for a like penalty in another State having a similar statute, and that Indiana could not enforce a penalty statute of another State. An earlier decision holds that the penalty for failure to transmit messages does not apply to those sent from without to be delivered within the State. In this case the telegraphic despatch was sent from Illinois to Indiana. The court said it was quite clear that statutes prescribing penalties had no extra-territorial effect, and that the statutory penalty rested upon the ground that there has been a valid contract. Therefore, the breach of duty occurs where the contract is made. The same reasons were also given, as were relied on in the decision last

6 Western Un. Teleg. Co. v. Howell, 95 Ga. 194, 51 Am. St. Rep. 68, 22 S. E. 286.

7 Walker v. Western Un. Teleg. Co., 95 Ga. 526, 21 S. E. 565; Davis v. Western Un. Teleg. Co., 95 Ga. 520, 20 S. E. 497; Western Un. Teleg. Co. v. Howell, 95 Ga. 194, 22 S. E. 286; Durant v. Western Un. Teleg. Co., 94 Ga. 442, 20 S. E. 1; Chandler v. Western Un. Teleg. Co., 94 Ga. 442, 21 S. E. 832; Smith v. Western Un. Teleg. Co., 94 Ga. 441, 19 S. E. 979; Western Un. Teleg. Co. v. Michelson, 94 Ga. 436, 21 S. E. 169; Western Un. Teleg. Co. v. Brightwell, 94 Ga. 434,

21 S. E. 518; Wolf v. Western Un. Teleg. Co., 94 Ga. 434, 19 S. E. 717; Mathis v. Western Un. Teleg. Co.. 94 Ga. 338, 21 S. E. 564, 1039; Western Un. Teleg. Co. v. Ryals, 94 Ga. 336, 21 S. E. 573; Baldwin v. Western Un. Teleg. Co., 93 Ga. 692, 21 S. E. 212, 44 Am. St. Rep. 194; Western Un. Teleg. Co. v. Bates, 93 Ga. 352, 20 S. E. 639; Western Un. Teleg. Co. v. James, 90 Ga. 254, 16 S. E. 83. See as to this case §§ 125-127, herein.

8 Rogers v. Western Un. Teleg. Co., 122 Ind. 395, 17 Am. St. Rep. 373, 24 N. E. 157, 3 Am. Elec. Cas. 638.

considered herein. It is important, however, to note that the complaint alleged the making of a contract in Illinois, and that the telegraph company "wholly failed to transmit the message." Again, where a message was delivered to an office in Indiana to be transmitted to Kentucky, it was held that transmission included delivery and that the penalty might be recovered for default in transmission, although the only wrongful act was committed at the Kentucky office. 10 In a still earlier case in that State the message was sent from, and the negligence occurred without, the State, and the court said that the penalty was imposed because the company undertook to send. the message to the party at the end of the route, and violated that contract, and that said contract was violated everywhere, because performed nowhere.11 Subsequently the case of Western Un. Teleg. Co. was before the Indiana court,12 and it was held that the action was not for a breach of contract, but for the recovery of a penalty given to the sender for a breach of duty by the telegraph company, and although the foundation of the right was the contract, yet the recovery was not for damages for the breach thereof; that the sender, having delivered the message at the telegraph office in the State, the parties and subject-matter were within the State jurisdiction. and subject to its laws; that the duty was created, owing, and violated in Indiana, and not in another State, even though the undertaking was to transmit the message into another State; and that in holding that the statute was valid the decision did not entrench upon the doctrine that State laws have no extraterritorial effect. It was also said by the court that if the telegraph company should show a positive statute of another State, commanding the delivery of messages in a certain manner, different from that prescribed by the Indiana statute, that it might be true that a showing of obedience to its commands

9 Carnahan v. Western Un. Teleg. Co., 89 Ind. 526, 46 Am. Rep. 175, 1 Am. Elec. Cas. 523.

10 Western Un. Teleg. Co. v. Lindley, 62 Ind. 371, 1 Am. Elec. Cas. 275.

11 Western Un. Teleg. Co. Hamilton, 50 Ind. 181.

V.

12 95 Ind. 12, 8 Am. & Eng. Corp. Cas. 56, 48 Am. Rep. 692, 1 Am. Elec. Cas. 632. Followed in Western Un. Teleg. Co. v. Meredith, 95 Ind. 93, 1 Am. Elec. Cas. 643; Western Un. Teleg. Co. v. Ferris, 103 Ind. 91, 1 Am. Elec. Cas. 782, 2 N. E. 240.

would constitute a defense. The statute also gave a right of action to the sender of the message for a recovery of the penalty. This decision was, however, overruled, to the extent stated in a prior section herein, by the United States Supreme Court. 13

§ 117. Same subjectSame subject-Indiana continued. The Indiana Act of 1885,14 imposing a penalty for failure to transmit messages with impartiality and good faith, and without discrimination, does not apply to cases of mere negligence in transmission, or failure to transmit a message, as did the earlier statute of 1881.15 Said Act of 1885 applies only to acts or omissions involving partiality, or bad faith, or discrimination, and no presumption arises that such partiality or bad faith exists.16 While the later statute repealed the former to the above extent, it did not release or extinguish any penalty incurred or accrued under the repealed act.17 Nor is the statute of 1881 repealed so far as it provides that "such companies shall deliver all despatches by a messenger to whom the same are addressed, or their agent, on payment of any charges due for the

13 Western Union Teleg. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 18 Am. & Eng. Corp. Cas. 18, 2 Am. Elec. Cas. 49. See § 127, herein. See Western Un. Teleg. Co. v. McDaniel, 103 Ind. 294, 1 Am. Elec. Cas. 793, 794, 795, 2 N. E. 709; Julian v. Western Un. Teleg. Co., 98 Ind. 327, 1 Am. Elec. Cas. 678, 680, 681; Western Un. Teleg. Co. v. Reed, 96 Ind. 195, 1 Am. Elec. Cas. 657, 658; Western Un. Teleg. Co. v. Jones, 95 Ind. 228, 1 Am. Elec. Cas. 580, 583; Western Un. Teleg. Co. v. Young, 93 Ind. 118, 1 Am. Elec. Cas. 612, 614.

14 Page 151, Elliott's Sup. Rev. 1881, §§ 1170-1172; Rev. Stat. §§ 4176, 4176b. Section 4177 was not repealed. See also Ind. Rev. Stat. 1894, §§ 5511-5513. See Horner's Annot. Stat. Ind. 1901, §§ 4176, 4177, 4192a. 4192b.

15 Rev. Stat. 1881, § 4178.

16 Western Un. Teleg. Co. v. Jones, 116 Ind. 361, 18 N. E. 529; Western Un. Teleg. Co. v. Steele, 108 Ind. 163, 2 Am. Elec. Cas. 539, 9 N. E. 78; Western Un. Teleg. Co. v. Swain, 109 Ind. 405, 9 N. E. 927, 2 Am. Elec. Cas. 539. (These three cases are disapproved. See § 117a, herein); Hadley v. Western Un. Teleg. Co., 115 Ind. 191, 21 Am. & Eng. Corp. Cas. 72, 15 N. E. 845, 2 Am. Elec. Cas. 539; Western Un. Teleg. Co. v. Swain, 109 Ind. 405, 2 Am. Elec. Cas. 539, 9 N. E. 927.

17 Western Un. Teleg. Co. v. Brown, 108 Ind. 538, 2 Am. Elec. Cas. 508, 8 N. E. 171; Western Un. Teleg. Co. v. Wilson, 108 Ind. 308, 2 Am. Elec. Cas. 516, 9 N. E. 172.

same, provided such persons or agents reside within one mile of the telegraphic station, or within the city or town within which the station is.18

§ 117a. Same subject Indiana continued.- Under the Indiana statute the word "transmission " includes delivery and telegraph companies are liable for the prescribed penalty whether their failure to deliver messages be due to wilfullness or negligence. "It is apparent that the legislature did not intend to make a distinction between intentional and negligent defaults" and "The suggestion that discrimination and partiality, as used in the statute, imply wilfullness and positive wrong-doing on the part of the company, as grounds for the penalty, is without substance, because the failure to deliver a despatch in the order of time in which it is received may occur from carelessness, as well as from wilfullness, and the consequences to the sender are precisely the same." 19 Again, under the penalty statute of that State for failure to receive and transmit messages which provides for a recovery of a fixed sum by a party" aggrieved" by a violation of the statutory duty, the party "aggrieved" is the person whose message the telegraph company has refused to receive or failed to transmit on the terms or in the manner prescribed by the statute, nor is it necessary for such person to show that he has sustained any actual damages. Such statute does not violate the State Constitution in that it deprives the school fund of a proper source of revenue, nor is it violative of that article of the Constitution which gives the governor power to grant reprieves, commutations and pardons after convictions, since such terms do not apply to the release of judgments in civil actions; nor does it violate the Federal Constitution as to a denial of equal protection of the laws, in that it applies to corporations and not to individuals, since an individual, partnership or corporation may own and operate a telegraph line and do a general business under the name of a "telegraph company.' "" And where it is alleged in the complaint as to the message that the defendant failed to "transmit the same with impartiality and in good

18 Reese v. Western Un. Teleg. Co., 123 Ind. 294, 7 L. R. A. 583, 3 Am. Elec. Cas. 640, 24 N. E. 163.

19 Western Union Teleg. Co. v. Braxton, 165 Ind. 165, 170, 171.

faith, and in order of time in which it was received," an answer thereto constitutes no defense which alleges diligence of defendant in attempting to deliver the message and the neg ligence of plaintiff in failing to furnish an accurate address. In such an action a special finding that the message was not transmitted and delivered in the order of time in which it was received is a proper statement of fact and not a conclusion of law, and where the evidence warrants a finding of negligent failure to transmit the message in the order of time in which it was received the assessment of the penalty therefor under the statute will be sustained. 20

§ 118. Commerce Federal Constitution - Penalty statutes - Telegraphic despatches - Iowa.- In Iowa a statute has no extra-territorial operation, which provides for the recovery of a certain amount in addition to the actual damage sustained, in cases where a telegraphic despatch has been postponed.21

§ 119. Commerce Federal Constitution - Penalty statutes - Telegraphic despatches Michigan.-In Michigan it is held that the penalty statute providing for transmitting messages in good faith, and with impartiality, does not apply where there is a mere neglect of duty and no bad faith.22

§ 119a. Commerce Penalty statute and distinction made -Mississippi.- A statute is unconstitutional and an interference with interstate commerce which imposes a penalty for delay in the transmission of a telegram or message over the

20 Western Union Teleg. Co. v. Ferguson, 157 Ind. 37, 60 N. E. 679, under Burn's Annot. Stat. 1901, 1894, § 5511, 5512, Horner's Annot. Stat. 1897. §§ 4176, 4176a. Amount of penalty $100 for each offense recoverable in a civil action. Case is approved generally in Western Union Teleg. Co. v. Braxton, 165 Ind. 165, 170. The cases of Western Union Teleg. Co. v. Steele, 108 Ind. 163, 9 N. E. 78; Western Union Teleg. Co. v. Swain, 109 Ind. 405, 9 N. E. 927: Western Union Teleg.

Co. v. Jones, 116 Ind. 361, 18 N. E. 529, are disapproved in the principal case.

21 Taylor v. Western Un. Teleg. Co., 95 Iowa, 740, 64 N. W. 660

22 Weaver v. Grand Rapids & Indiana R. Co., 107 Mich. 300, 65 N. W. 225, 2 Det. Leg. News, 677, 6 Am. Elec. Cas. 779; How. Ann. Stat., § 3706; § 14, Act No. 59, Acts 1851. In this case no question was raised or discussed as to interstate commerce. See § 83, herein.