facts were essentially the same; and it was declared that there was involved "the exercise of an important police power of the State, a power which ought not to be surrendered, and which we are unwilling to surrender, in the absence of a direct and authoritative declaration on the part of the Supreme Court of the United States that it is violative of the Federal Constitution." 37

$125. Commerce Federal Constitution Penalty statutes -Telegraphic despatches United States. Whatever authority the State may possess over telegraph companies and the regulation of their business within its territorial limits, it cannot extend that authority beyond said lines and into other States. This rule is well settled. The power of Congress, within constitutional limitations, to regulate commerce between the States, is exclusive.38 But where Congress is silent upon the subject,39 a State statute may require that electric telegraph companies, having a line of wires wholly or partly within the State, and engaged in telegraphing for the public, shall, under such a reasonable penalty for noncompliance as will not impede interstate commerce, receive, transmit and deliver despatches with impartiality, good faith and due diligence, on payment of the usual charges. Such a requirement is within the police power of the State, even though it affects in some degree the transmission of interstate messages, and messages from without the State, since delivery is a part of and completes the transmission of a message. Such a statute is not a regulation of, nor an obstruction to, interstate commerce, nor does it violate the constitutional provision of the United States relating thereto. 40

§ 126. Same subject-Reasons for rule. The rule above stated is in some respects an apparent departure from the rul

37 Western Union Teleg. Co. v. Hughes, 104 Va. 240, 51 S. E. 225, 11 Va. Law Reg. 312, per Whittle, J. Cardwell, J., dissented and Keith, P., concurred in the latter's opinion.

38 See also §§ 65-67, herein. 39 See also §§ 65-67, herein.

40 Western Un. Teleg. Co. V. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, 6 Am. Elec. Cas. 858, 90 Ga. 254 (Act of Ga., Oct. 22, 1887), Laws of Ga. 1887, No. 365, amended by Laws of 1892, No. 93; repealed by Laws of 1894, No. 96.

ings and reasonings in other cases on the same or analogous points decided in the same court. But it is based upon a most ably considered and exhaustive opinion given by Mr. Justice Peckham. The following is for the greater part taken substantially therefrom. We have examined elsewhere 41 the question of the effect of silence of Congress upon a subject over which its power is exclusive whenever it choses to legislate thereon, and will only state here substantially certain other reasons supporting the rule given in the preceding section. Such a statute is of a nature nowise obstructive of the duty of a telegraph company, but it rather aids the performance of the contract duty obligatory upon the company, even in the absence of a legislative requirement. An enactment of this character differs from a tax upon an interstate message, nor is it calculated to at all embarrass, obstruct or impede the company in the performance of its duty. The subject of the act is not National in character, nor is uniformity requisite, and no confusion could arise from carrying out, within the limits of the State, the provisions of the statute. The rule, however, would not extend to the right to enforce a penalty so unreasonable or grossly excessive as to harass or impede interstate commerce. It is true, and has been so held in several cases, that telegraph lines extending through different States are instruments of interstate commerce; that business originating in one State and terminating in another, or messages passing over telegraphic lines from one State to another, constitute a portion of commerce itself; and that a message given for transmission to be delivered in another State resembles, so far as interstate commerce is concerned, the giving of goods to a carrier to be transported into another State, and, therefore, such messages are within the commercial clause of the Federal Constitution.42

41 See §§ 65-67, herein.

42 Business of this character, originating in one State and terminating in another, is interstate commerce. Matter of Taxation of Pennsylvania Teleph. Co., 48 N. J. Eq. 91, 27 Am. St. Rep. 462, 3 Am. Elec. Cas. 9, 10, 11, 20 Atl. 846, per Bird, V C., a tax case, holding that injunction would not lie. Trans

mission includes delivery. Brashears v. Western Un. Teleg. Co., 45 Mo. App. 433, 3 Am. Elec. Cas. 701, 707, per Biggs, J. Transmission does not include delivery. Dudley v. Western Un. Teleg. Co., 54 Mo. App. 491. Undertaking to transmit is continuous; the failure to deliver is a failure to transmit. Julian v. Western Un. Teleg. Co., 98

But a State has power to regulate commerce within its own territorial limits, provided it does not materially encroach upon the rights of Congress in this respect, and a statute may be in aid of commerce and constitute only a slight or unimportant interference with interstate commerce, and be a constitutional enactment within the Federal provision. And the rule we are discussing will be enforced where it appears that there is no attempt to extend the provisions of the State statute outside of the territorial limits of the State, but only to reasonably exercise the rights conferred in aid of commerce without impeding or embarrassing or materially interfering with interstate commerce. Again, it was urged in this case that the parties had entered into a valid contract with the sender of the message in another State which provided for nonliability for mistakes in transmission, beyond the sum paid for sending the message, except on repetition of the message and additional payment, and that, therefore, the penalty statute changed said original contract. But the answer to this argument was that the action was not brought by the sender of the message, and the plaintiff was not concerned with that contract; that there was no mistake in transmission and no breach of said agreement; that the action was not founded upon any agreement, and the judgment neither affected nor violated such contract, but was based solely upon the penalty.43

Ind. 327, 1 Am. Elec. Cas. 678, 680, per Elliott, C. J. Delay in transmitting might be considered as involved in a failure to deliver. Western Un. Teleg. Co. v. Taylor, 84 Ga. 408, 3 Am. Elec. Cas. 604, 613, 11 S. E. 396, per Bleckley, C. J. Delivery is part of the duty of transmission. Little Rock & Ft. Smith Teleg. Co. v Davis, 41 Ark. 79, 8 Am. & Eng. Corp. Cas. 72, 1 Am. Elec. Cas. 526. Resembles goods started for transportation to another State or delivered to a common carrier for that purpose. Matter of Taxation of Teleph. Co., 48 N. J. Eq. 91, 3 Am. Elec. Cas. 9, 12, per Bird, V. C., 20 Atl. 846.

43 See also the following: It is not a mere breach of contract, but a failure to perform a duty, and the sum to be recovered is a penalty for that breach of duty. Thurn v. Alta Teleg. Co., 15 Cal. 472; Allen's Teleg. Cas. 146, 148, per Baldwin, J. It is not a mere breach of contract, but a failure to perform a duty, which rests upon the telegraph company as a servant of the people. Reese V. Western Un. Teleg. Co., 123 Ind. 294, 7 L. R. A. 583, 24 N. E. 163, 3 Am. Elec. Cas. 640, 649, per Berkshire, J. Though in form ex contractu, the action is founded in tort for a penalty and is ex delicto. Western Un. Teleg.

§ 127. Commerce Commerce Federal Constitution - Penalty statutes Telegraphic despatches - United States continued. In the United States case noted under the last two sections,44 two justices 45 dissented for the reasons given in the Pendleton case, a prior decision of the same court.46 In this latter case the statute of Indiana was substantially the same as to the points involved as that in the case in which the said justices dissented. It differed, however, in certain provisions relating to the delivery of messages."

sion was confined to the ruling, that the statutory penalty could not be recovered for failure to deliver a telegram addressed to a point without the State. The whole of the Indiana statute was construed in its entirety, certain provisions in relation to precedence in telegrams and delivery of telegrams by messengers being especially noted. But the statute was, however, only held invalid in so far as interstate messages were concerned. The main reasons for the decision were a collision of State statutes if a delivery of messages in other States were enforced, and the exclusive power of Congress to regulate commerce whenever it should choose to exercise its power. A prior Federal decision was also relied on which held that a tax on every message transmitted by a telegraph company doing business in a State was invalid in so far as it operated on private messages sent without the State, or Government messages on public business.48

Penalty statutes

§ 128. Commerce Federal Constitution - Telegraphic despatches - Conclusion. In view of the preceding decisions, and also of those considered elsewhere relating to the exclusive power of Congress to regulate commerce; to what constitutes hostile legislation; to the questions of taxation and the police power of the State, and other analogous points, it may be safely asserted that (1) a State penalty statute as to the transmission and delivery of telegraphic de spatches can have no extra-territorial force. (2) It cannot be presumed that the legislature intended such a statute to have any extraterritorial effect, nor need every section of a penalty statute declare in terms the scope of its territorial operation. (3) It will not be assumed that it was intended by the commercial clause of the Federal Constitution to deprive the States absolutely of all control where Congress has remained silent in matters relating to the duties of telegraph companies. (4) The intent of the Post Roads Act will not be extended by construction to be exclusive of all legislation by the States on

shall deliver all despatches to the persons to whom the same are addressed or to their agents on payment of any charges due for the same," Act of Oct. 22, 1887.

48 Telegraph Co. v. Texas, 105 U. S. 460, 1 Am. Elec. Cas. 373, revg. 55 Tex. 314. This case was also distinguished in the decision first Icited in this section.