matters not expressly or by implication covered by said enactment. (5) Uniformity in National matters is one of the objects of interstate commerce regulations. (6) State enactments must not materially harass, impede or interfere with interstate commerce. (7) A State statute may be in aid of commerce within the State limits. (8) State legislation may constitute a slight interference with interstate commerce and not be necessarily void for that reason. (9) A contract, obligation or duty of a telegraph company may be aided by State legislation operative within the State limits. (10) A telegraph company, while an instrument of interstate commerce, is not, for that reason, exempt from an obligation to perform its legal contract duties which are lawfully owing to the citizens of a State as such. (11) A State statute requiring, under a reasonable penalty for noncompliance, good faith, due diligence, and impartiality in the receipt, transmission and delivery of telegraphic messages upon the payment of the usual legal charges, is not a tax. (12) Such a statute does not hinder, impede, harass or interfere with a telegraph company in doing that which it contracts to do, that is, to transmit and deliver messages for hire for the public; on the contrary, it rather induces the performance of that duty. (13) If the negligent act constituting the basis of recovery of the penalty arose outside the State, then it is separable from the act of complete transmission to the extent that the State has no extra-territorial power to enforce a penalty therefor. (14) If the negligent act arose within the State, then it is separable from the act of complete transmission to the extent that the State may, within its limits, enforce a reasonable penalty under a statute providing against such negligence. (15) The proposition that transmission includes delivery cannot be held to extend the State's power beyond its territorial limits, nor deprive it of the right to take cognizance of negligent acts within the State by the enforcement of reasonable penalty statutes within its State limits, when such statutes are intended to protect the public and to induce, without any material interference with interstate commerce, the performance of duties legally obligatory upon telegraph companies by virtue of their contracts. (16) Illegal preferences as to the order of despatches under a State. penalty statute may constitute such an interference with interstate commerce, as to be invalid.

§ 130. Post Roads Act - Superior right- Telegraph or electric light company.- The Post Roads Act provides that the franchise granted shall not be exercised so as to interfere with ordinary travel, and it was urged in this connection, in a case in the United States Circuit Court, that the electric lighting of a city so promoted the primary use of its streets that a company engaged exclusively in the business of electric lighting had a right to occupy said streets, superior to that of a telegraph company claiming the benefits of the Post Roads Act. The court, however, while saying it was "a question carefully to be weighed," declared that it was not necessary to the determination of the case at bar, and, therefore, the point was 1 Act of Congress, July 24, 1866.

not further considered.2 But in a Tennessee case a telephone company was first in occupancy and its occupation was subject to a similar condition as that above specified with regard to obstructing the ordinary use of public highways, and it was held that induction must be remedied at the expense of the telephone company, as the use of the streets by an electric railway was an "ordinary use," and induction was technically an obstruction by said telephone company. But it was also held that conduction was not necessarily connected with street use, and was caused by the failure of the railway company to so use its own property as not to injure that of another, and it must, therefore, pay the expense of applying the remedy. This ruling was also made as to the conflict of wires, since the railway company could have so placed its appliances as not to interfere or conflict with those of the telephone company. This case, however, was not one involving the discussion of the Post Roads Act. But it would seem, for the reasons urged in the last section herein, that a telegraph company claiming under said statute would occupy a stronger legal position as against a like interference than would the telephone company in this last case. Again, it is held in New York, without discussion of the Post Roads Act, that a street railway company is, and the telephone is not, a primary use of the street, and that a telephone company's franchise was subject to the rights of public travel, while the street use by the railway company was in aid of travel. Therefore, an injunction at the suit of the former would not lie against the latter solely on the ground of injury due to induction which the railway company could only avoid by the use of more expensive and dangerous, but less useful apparatus. While the decisions noted under this

2 Western Un. Teleg. Co. v. Los Angeles Electric Co., 76 Fed. 178, 6 Am. Elec. Cas. 202, 209, per Wellborn, Dist. J.

3 The Cumberland Teleg. & Teleph. Co. v. The United Elec. Ry. Co.. 93 Tenn. 492, 27 L. R. A. 36, 29 S. W. 104, 4 Am. Elec. Cas. 297.

4 Hudson River Teleph. Co. V. Watervliet Turnpike Co., 135 N. Y. 393, 63 N. Y. St. R. 642, 32 N. E.

148, 31 Am. St. Rep. 338, 4 Am. Elec. Cas. 275, revg. 61 Hun (N. Y.), 140, 39 N. Y. St. R., 952, 15 N. Y. Supp. 752, 21 Civ. Proc. Rep. 204. See as to primary use of streets and relative rights of telephone companies and electric railway companies, Cincinnati Inclined Plane Ry. Co. v. City & Suburban Teleg. Assn., 48 Ohio St. 390, 29 Am. St. Rep. 559, 30 Cent. L. Jour.

section bear upon the point raised in the Federal case first considered, they cannot be deemed decisive. We have, however, fully considered elsewhere the questions of interference, induction, conduction, conflict of wires, priority of street occupation by electrical companies and their relative rights, and, although such questions are considered in numerous cases not involving the Post Roads Act, yet they are of value, in this connection, in so far as like principles are discussed.

§ 131. Post Roads Act - Prior occupancy of telegraph company-Interference - Electric light line.- Where a company is engaged in transmitting electricity, not only for lighting purposes, but also for propelling machinery, a franchise acquired by a telegraph company under the Post Roads Act confers a superior right when fortified by prior occupancy. And a demurrer to a bill to restrain the operation of such electric light and power company's line will be overruled where it appears that while the telegraph line was in full operation, the former company constructed a line of poles in exact line with those of the latter, and strung its wires upon the crossarms of its poles directly under the wires of the telegraph company, and in many places so near to the wires of the latter as to interfere with the working of the same in consequence of the stronger electrical current sent over the light and power company's wires. And also, where the bill for relief expressly and directly alleges that the operation of defendant's line will seriously and prejudicially interfere with and affect complainant's line. The fact that a telegraph company is engaged in the service of the public; that its duties are regulated by law and enforced by penalties; that it has accepted the benefits of the Post Roads Act, is an instrument of commerce, a necessity thereto, and an agent of the Federal Government might entitle it to insist upon the rigid protection of the law over its

218, 10 Ry. & Corp. L. Jour. 82, 27 N. E. 890, 3 Am. Elec. Cas. 443. That the telephone is not and the electric railway is a proper street use, see East Tenn. Teleph. Co. v. Knoxville St. R. Co. (Chan. Ct., Tenn., 1890), 3 Am. Elec. Cas. 400;

Rocky Mountain Bell Teleph. Co. v.
The Salt Lake City R. Co. (Dist.
Ct., Utah Ter., 3d. Jud. Dist., 1889),
3 Am. Elec. Cas. 356.

5 Western Un. Teleg. Co. v. Los Angeles Electric Co., 76 Fed. 178, 6 Am. Elec. Cas. 202.

instrumentalities so essential to the performance of its duties. Especially so as against an encroachment or interference by a company not subject to the same obligations and penalties."

8

§ 132. Post Roads Act Construction of telegraph lines Railroad right of way- Compensation.- A State statute which authorizes a telegraph company to construct, maintain and operate its lines, upon making just compensation, along and parallel to any of the railroads in the State, with the proviso that the ordinary use of such roads be not obstructed, is subordinate to the Post Roads Act of Congress, and also to the later act, which makes all railroads, which then were or might thereafter be in operation, post roads. The State law, however, must be resorted to for condemnation and compensation. So that a telegraph line may, under said acts of Congress and the State, be located over and along a railroad right of way, upon making just compensation, provided said lines are so constructed and maintained as not to interfere with ordinary travel on such post roads or railroads. A telegraph line may also be constructed under the Post Roads Act, upon the right of way thereafter granted by the United States to a railroad. company, from the public lands, especially so, where such railroad is made a military and post road under the granting act.10 But it was not intended by said Post Roads Act to permit such right of way of railroad companies to be appropriated by telegraph companies, without consent of, or compensation to, the former, nor could such act constitutionally so provide.11

• Western Un. Teleg. Co. v. Guernsey & Scudder Elec. L. Co., 46 Mo. App. 120, 3 Am. Elec. Cas. 425. See next section herein.

7 Act of July 24, 1866.
8 Act of Congress, 1872.

Postal Teleg. Cable Co. of La. v. Morgan's La. & Tex. R. & SS. Co., 49 La. Ann. 58, 21 So. 183, 6 Am. Elec. Cas. 183; La. Act of 1880, No. 124.

10 Mercantile Trust Co. v. Atlantie & Pac. R. Co. (U. S. C. C.,

1894), 63 Fed. 513, 910, 5 Am. Elec. Cas. 207, 219.

11 Atlantic & Pacific Teleg. Co. v. Chicago, R. I. & Pac. R. Co., 6 Biss. (U. S.) 158, 1 Am. Elec. Cas. 111; American Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 3 Am. Elec. Cas. 169, 18 Atl. 910. See St. Louis & C. R. Co. v. Postal Teleg. Cable Co., 173 Ill. 508, 51 N. E. 382; Postal Teleg. Cable Co. v. Norfolk & W. R. Co., 88 Va. 921, 14 S. E. 803.