Western Union Telegraph Co. v. Pendleton

• Decision Date: 04 April 1884
• Docket Number: 11,045
• Citation: 95 Ind. 12
• Parties: Western Union Telegraph Company v. Pendleton
• Court: Indiana Supreme Court

95 Ind. 12

Western Union Telegraph Company v. Pendleton

No. 11,045

Supreme Court of Indiana

April 4, 1884

From the Shelby Circuit Court.

Judgment affirmed.

J. E McDonald, J. M. Butler and A. L. Mason, for appellant.

E. K Adams and L. J. Hackney, for appellee.

OPINION

Elliott J.

Our statute provides that a telegraph company with a line of wires wholly or partly within the State shall, during the usual office hours, receive despatches, and, on payment or tender of the usual charges, according to the regulation of the company, transmit messages with impartiality and good faith in the order in which they are received, and, for a failure to perform this duty, shall be liable to a penalty of $ 100, to be recovered by the person whose despatch is postponed or neglected.

The validity of this statute is contested upon the ground that it infringes the provision of the Constitution of the United States which invests Congress with power "to regulate commerce with foreign nations and among the several States." This position can not, of course, be even plausibly maintained in cases where the line is wholly within the State; in such cases the business is purely domestic and not interstate, but here the line of the company extends beyond the State, and the message delivered to the company was undertaken to be transmitted to a point in Iowa.

The telegraph is an instrument of commerce. Intercourse by telegraph is commercial intercourse, and where it extends beyond the State is interstate and subject to the control of Congress. Pensacola Tel. Co. v. Western U. T. Co., 96 U.S. 1; Telegraph Co. v. Texas, 105 U.S. 460.

There is much conflict of opinion in the decisions of the courts of last resort upon this subject, and it will be found to be no easy task to extract from the decisions well defined rules. The study of the many able opinions that have been delivered by our great judges, beginning with that of the great chief justice, John Marshall, is an interesting one, but we do not feel called upon to review these cases. Three theories seem to have been maintained, one that the States can not legislate upon the subject at all, whether Congress has or has not exercised the power vested in it; another, that when Congress has exercised its power, the States can adopt no valid legislation; and still another, that the States may legislate upon the subject even though Congress has exercised the power vested in it by the Constitution. We think, however, that the ultimate conclusion deducible from the later decisions is, that the States can not embarrass commercial communication, abridge the freedom of commerce, discriminate in favor of the products of one State, lay burdens upon the instruments of commerce, or exact licenses from persons, natural or artificial, engaged in interstate commerce, and that this is so whether Congress has or has not legislated upon the subject. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Willson v. Blackbird, etc., Co., 2 Peters 245; City of New York v. Miln, 11 Peters 102; Thurlow v. Massachusetts, 5 How. 504; Smith v. Turner, 7 How. 283; Cooley v. Board, etc., 12 How. 299; State v. Wheeling, etc., Co., 13 How. 518; Smith v. State, 18 How. 71; Gilman v. Philadelphia, 3 Wall. 713; Railroad Co. v. Pennsylvania, 15 Wall. 232; Welton v. State, 91 U.S. 275; Cook v. Pennsylvania, 97 U.S. 566; Webber v. Virginia, 103 U.S. 344; Telegraph Co. v. Texas, supra.

Accepting this conclusion as the law which rules our decision, we still have no hesitation in affirming that our statute is not borne down by it. No discrimination is made in favor of any person, or in favor of any article of commerce; the freedom of commercial intercourse is not abridged, and no new duty or burden is imposed upon the company. The statute secures to all alike the privilege of demanding that the duties of the corporation be performed with diligence, impartiality and good faith. It enforces an existing duty, and provides a penalty, but it confines the duty to no class and denies the penalty to none. It is impossible to conceive the slightest restriction upon commercial intercourse, or the faintest discrimination in favor of any person or thing. Granting, then, the lack of power in the State to abridge the freedom of commerce, or to discriminate in favor of men or things, we may still maintain that telegraph companies, having offices and doing business in our State, may be compelled to discharge their duties diligently and impartially, because in requiring this a police power, inherent in all sovereignties, is rightfully exercised. We do not maintain that, under the guise of a police regulation, the State can abridge the freedom of commercial intercourse, or discriminate in favor of the products of one State, or grant commercial rights to the citizens of some particular State and deny them to others, but we do maintain that the sovereign State has power to enact laws requiring persons, artificial or natural, doing business within its borders, to transact that business with fairness, diligence and impartiality. A statute operating upon persons within the State, declaring an existing duty, adding neither new nor additional ones, usurps no functions of the Federal Congress, and infringes no constitutional provision. We are not willing to concede that the police power inherent in all sovereignties is annihilated in all matters touching interstate commerce by the provisions of the National Constitution to which we have referred; on the contrary we are satisfied that the power is not impaired or limited, except to the extent that it may not be exercised in such a manner as to abridge, embarrass, or interfere with the freedom of interstate commerce, or so as to encroach upon valid congressional legislation. The right to exercise the police power is not so hedged in as that it can not be exercised upon instruments or articles of commerce; it may be exercised, even in commercial affairs, provided that it is not so exercised as to impose burdens or restrictions which limit or impede the free course of commerce. Sherlock v. Alling, 93 U.S. 99; County of Mobile v. Kimball, 102 U.S. 691.

The police power is the right to regulate the enjoyment of property, to maintain public order, to secure the rights of citizenship, and to prevent injury to private rights. This power can not be exercised within State limits by the Congress of the Nation. United States v. Dewitt, 9 Wall. 41; United States v. Reese, 92 U.S. 214; United States v. Cruikshank, 92 U.S. 542; Munn v. Illinois, 94 U.S. 113; Civil Rights Cases, 109 U.S. 3. The power of enacting laws upon this subject resides solely and exclusively in the States, and extends to all matters of personal and property rights within the States. A denial of the right to legislate upon matters connected with commerce and its instrumentalities would result in evils of great magnitude. If there be no such power, then the State can not regulate the speed of railroad trains where the railroad line extends beyond the State, nor enact any law providing for the safety of passengers and the community, and if the States possess no such power, then it has no existence, because, by the conclusive adjudications of the highest court, the police power does not reside in Congress. The States must, and do, possess this power, even with respect to commercial affairs. True, the power is somewhat limited, but it nevertheless exists.

We assume that the power to enact laws declaratory of a duty exists, and it remains to determine whether our statute is a valid exercise of this sovereign power. In Munn v. Illinois, supra, the act of the Legislature of Illinois providing for the storage and shipment of grain by warehousemen was held valid, and in speaking of the effect of the constitutional provision respecting commerce, the court said of the warehousemen: "Incidentally they may become connected with interstate commerce, but not necessarily so. Their regulation is a thing of domestic concern, and, certainly, until Congress acts in reference to their interstate relations, the State may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside of its immediate jurisdiction."

The court in another case said: "Yet it is not everything that affects commerce that amounts to a regulation of it within the meaning of the Constitution." R. R. Co. v. Penn., supra. Strong language was used in City of New York v. Miln, supra, but we only have space for the following brief extract: "That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive." This language was used in a case where the State law directly affected, and in a very material degree, foreign commerce. The case from which we have quoted, and its principle, have been applied in many instances, and among the cases furnishing a striking illustration of the rule declared and of its application is that known as the Slaughter House Cases, 16 Wall. 36. In the case of Cooley v. Board, etc., supra, a State law requiring vessels to take pilots, and prescribing a penalty for a breach of duty, was held valid. The court sustained a State statute, levying taxes upon articles of commerce in Woodruff v. Parham, 8 Wall. 123. It was said of that statute, what may with truth be said of ours, that "There is no attempt to discriminate injuriously against the products of other States or the rights of their citizens, and the case is not, therefore, an attempt to fetter commerce among the States, or to deprive...