INDEX Abutting owner, rights of, as to use of highway for elec- In rural highway, fee to center of which is in abutting Postal Telegraph Cable Co. v. Bruen (N. Y.)...................... In city streets, maintenance of telephone appliances under Compensation to, not prerequisite to placing of telephone Incurs no liability in cutting down telephone pole in street York Telephone Company v. Keesey (Pa.) ...... In action for damages by reason of constructing telephone Blashfield v. Empire State Teleph. & Tel. Co. (N. Y.). ..... Palmer v. Larchmont Elec. Co. (N. Y.). PAGE 120 107 120 12 Clark v. Middletown-Goshen Traction Co. (N. Y.).......... 148 Contra. State, Roebling Pros. v. Trenton (N. J.)....... 137 U. S. 196, is Telegraph Co. v. James. The case of Gloucester Ferry Co. v. Pennsylvania, 114 an illustration of the invalidity of an attempt to tax persons or property received and landed within a State which had been transported from another State. It was there held that the tax was upon interstate commerce and a regulation thereof upon a matter national in character, requiring uniformity of regulation, and that therefore, the power of Congress was exclusive. If Congress were silent, no exaction could be made or levied. In the case at bar there is no tax laid upon these messages, and no obstruction is placed in the way of the company in regard to the performance of any duty owed by it in connection with them. Instead of obstructing, this statute aids commerce. The subject of the act is not national in character, nor is uniformity at all requisite. Conduct which might incur the penalty of $100 in one State might violate no statute in another, and still a third might subject the carrier to a penalty of but $50, and yet there would exist no reason for uniformity of rule governing the subject, and the carrier would really suffer nothing from its absence. Nor is the Statute open to the same objections that were regarded as fatal in the Pendleton case, 122 U. S. 347. No attempt is here made to enforce the provisions of the State statute beyond the limits of the State, and no other State could by legislative enactment affect in any degree the duty of the company in relation to the delivery of messages within the limits of the State of Georgia. No confusion, therefore, could be expected in carrying out within the limits of that State the provisions of the statute. It is true it provides a penalty for a violation of its terms and permits a recovery of the amount thereof irrespective of the question whether any actual damages have been sustained by the individual who brings the suit; but that is only a matter in aid of the performance of the general duty owed by the company. It is not a regulation of Telegraph Co. v. James. commerce, but a provision which only incidentally affects it. We do not mean to be understood as holding that any State law on the subject would be valid, even in the absence of congressional legislation, if the penalty provided were so grossly excessive that the necessary operation of such legislation would be to impede interstate commerce. Our decision in this case would form no precedent for holding valid such legislation. It might then be urged that legislation of that character was not in aid of Congress, but was of a nature well calculated to harass and to impede it. While the penalty in the present statute is quite ample for a mere neglect to deliver in some cases, we cannot say that it is so unreasonable as to be outside of and beyond the jurisdiction of the State to enact. While it is vitally important that commerce between the States should be unembarrassed by vexatious State regulations regarding it, yet on the other hand there are many occasions where the police power of the State can be properly exercised to insure a faithful and prompt performance of duty within the limits of the State upon the part of those who are engaged in interstate commerce. We think the statute in question is one of that class, and in the absence of any legislation by Congress the statute is a valid exercise of the power of the State over the subject. Again, it is said that this company entered into a valid contract in Alabama with the sender of the message, which provided that it would not be liable for mistakes in its transmission beyond the sum received for sending the message, unless the sender ordered it to be repeated and paid half the sum in addition, and this statute changed the liability of the company as it would otherwise exist. The message was not repeated. This kind of a contract, it is said, was a reasonable one, and has been so held by this court. Primrose v. Western Union Telegraph Co., 154 U. S. 1. This, however, is not an action by the person who sent the message from Alabama, and this plaintiff is Telegraph Co. v. James. not concerned with that contract, whatever it was. There was no mistake in the transmission of the message, and there was no breach of the agreement. The action here is not founded upon any agreement and the judgment neither affects nor violates the contract mentioned. Nor are we here concerned with the provisions of the third section of the act relating to the damages to be recovered in the case of cipher messages. This was not such a message, and this judgment is solely based upon the penalty granted by the statute for non-delivery, and could be sustained even if the third section of the act were not valid, which is a question we do not decide nor express any opinion concerning it. The residue of the act could stand without the third section. After a careful review of the case, we think the judgment is right and that it should be Affirmed. Mr. Justice SHIRAS and Mr. Justice WHITE dissent, and refer for their reasons to the case of Western Union Telegraph Co. v. Pendleton, 122 U. S. 347. NOTE. The particular statute under consideration in this decision was repealed by Laws 96, 1894. See 4 Am. Electl. Cas. 861, note. |