Opinion of the Court.

the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other.

In the consideration of numerous cases, in which questions have arisen relating to ordinary commerce with foreign countries and between the states, this court has reached certain conclusions as to what subjects of commerce the regulation of Congress is exclusive, and indicated on what subjects the states may exercise a concurrent authority until Congress intervenes and assumes control. Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 Wall. 35; Welton v. State of Missouri, 91 U. S. 275; Henderson v. Mayor of New York, 92 U. S. 259; Inman Steamship Co. v. Tinker, 94 U. S. 238; Hall v. De Cuir, 95 U. S. 485; County of Mobile v. Kimball, 102 U. S. 691; Transportation Co. v. Parkersburgh, 107 U. S. 691; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Wabash, St. Louis & Pacific Railway Co. v. Illinois, 118 U. S. 557; and Robbins v. Shelby Taxing District, 120 U. S. 489, 493. But with reference to the new species of commerce, consisting of intercourse by telegraphic messages, this court has only in two cases been called upon to inquire into the power of Congress and of the state over the subject. In Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, this court had before it the act of Congress of July 24, 1866, 14 Stat. 221, "to aid in the Construction of Telegraph Lines, and to secure to the Government the Use of the same for postal, military, and other Purposes," and it held that the act was constitutional so far as it declared that the erection of telegraph wires should, as against state interference, be free to all who accepted its terms and conditions, and that a telegraph company of one state accepting them could not be excluded by another state from prosecuting its business within her jurisdiction. In Telegraph Company v. Texas, 105 U. S. 460, from the opinion in which we have quoted above, it was held that a statute of Texas imposing a tax upon every message transmitted by a telegraph company doing business within its limits, so far as it operated on messages sent out of the state, was a regulation of foreign and interstate commerce, and, therefore, beyond the power of the state.

Opinion of the Court.

In these cases the supreme authority of Congress over the subject of commerce by the telegraph with foreign countries or among the states is affirmed, whenever that body chooses to exert its power; and it is also held that the states can impose no impediments to the freedom of that commerce. In conformity with these views the attempted regulation by Indiana of the mode in which messages sent by telegraphic companies doing business within her limits shall be delivered in other states cannot be upheld. It is an impediment to the freedom of that form of interstate commerce, which is as much beyond the power of Indiana to interpose, as the imposition of a tax by the state of Texas upon every message transmitted by a telegraph company within her limits to other states was beyond her power. Whatever authority the state may possess over the transmission and delivery of messages by telegraph companies within her limits, it does not extend to the delivery of messages in other states.

The object of vesting the power to regulate commerce in Congress was to secure, with reference to its subjects, uniform regulations, where such uniformity is practicable, against conflicting state legislation. Such conflicting legislation would inevitably follow with reference to telegraphic communications between citizens of different states, if each state was vested with power to control them beyond its own limits. The manner and order of the delivery of telegrams, as well as of their transmission, would vary according to the judgment of each state. Indiana, as seen by its law given above, has provided that communications for or from officers of justice shall take precedence, and that arrangements may be made with publishers of newspapers for the transmission of intelligence of general and public interest out of its order; but that all other messages shall be transmitted in the order in which they are received; and punishes as an offence a disregard of this rule. Her attempt, by penal statutes, to enforce a delivery of such messages in other states, in conformity with this rule, could hardly fail to lead to collision with their statutes. Other states might well direct that telegrams on many other subjects should have precedence in delivery within their limits over

Opinion of the Court.

some of these, such as telegrams for the attendance of physicians and surgeons in case of sudden sickness or accident, telegrams calling for aid in cases of fire or other calamity, and telegrams respecting the sickness or death of relatives.

Indiana also requires telegrams to be delivered by messengers to the persons to whom they are addressed, if they reside within one mile of the telegraph station, or within the city and town in which such station is; and the requirement applies, according to the decision of its Supreme Court in this case, when the delivery is to be made in another state. Other states might conclude that the delivery by messenger to a person living in a town or city being many miles in extent was an unwise burden, and require the duty within less limits; but if the law of one state can prescribe the order and manner of delivery in another state, the receiver of the message would often find himself incurring a penalty because of conflicting laws, both of which he could not obey. Conflict and confusion would only follow the attempted exercise of such a power. We are clear that it does not exist in any state.

The Supreme Court of Indiana placed its decision in support of the statute principally upon the ground that it was the exercise of the police power of the state. Undoubtedly, under the reserve powers of the state, which are designated under that somewhat ambiguous term of police powers, regulations may be prescribed by the state for the good order, peace, and protection of the community. The subjects upon which the state may act are almost infinite, yet in its regulations with respect to all of them there is this necessary limitation, that the state does not thereby encroach upon the free exercise of the power vested in Congress by the Constitution. Within that limitation it may, undoubtedly, make all necessary provisions with respect to the buildings, poles, and wires of telegraph companies in its jurisdiction which the comfort and convenience of the community may require.

It follows from the views expressed that

The judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion; and it is so ordered.

Statement of the Case.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY v. VICKERS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

Argued May 2, 1887.- Decided May 27, 1887.

A state constitution cannot prohibit judges of the courts of the United States from charging juries with regard to matters of fact.

THE defendant in error sued the plaintiff in error in a state court of Arkansas to recover damages for personal injuries sustained by him while a passenger on one of the trains of the company. On the defendant's motion the cause was removed to the Circuit Court of the United States, where a general answer was made, denying negligence, and averring contributory negligence. The injuries were alleged to have been caused by the negligence of the defendant's employes in violently projecting a locomotive and one or more freight cars against the forward one of several cars, in the rear of one of which was the coach in which the plaintiff was a passenger. This occurred during the process of shifting cars at a place known as Barham's Station in Oachita County, Arkansas. It was alleged that the plaintiff was passing from the closet to his seat, and that the shock of the collision precipitated him upon the floor of the car with the result of the injuries of which he complained.

The defendant answered, denying any negligence on its part or on the part of its employes, and charging the plaintiff with contributory negligence.

The case was tried before a jury. It was shown in evidence that a violent storm was in progress at the time when the plaintiff received his injuries. The testimony conflicted materially as to the violence of the shock in the attempted coupling, as to whether it was extraordinary or not more than usual violence; as to the position of the plaintiff at the time the coupling was made; whether he had just left the closet and

Argument for Plaintiff in Error.

was returning to his seat, or had been for some minutes standing in the aisle and looking out of the rear door. There were also other points of conflict in the testimony.

The assignments of error were the following:

1. The court erred in instructing the jury as follows: "Counsel for the plaintiff told you that you might find a verdict for plaintiff for any sum from one cent to $25,000. This is true in one sense. You have the power to render a verdict for one cent or for $25,000, but a verdict for either of these sums would obviously be a false verdict, for if the plaintiff is entitled to a verdict at all, and upon this point you will probably have no difficulty, as the evidence clearly shows negligence and consequent liability on the defendant, though this is a question of fact exclusively within your province to determine I say, if plaintiff is entitled to a verdict at all he is entitled to recover more than one cent, and it is equally clear that $25,000 would be greatly in excess of what he ought to recover."

2. The court erred in instructing the jury as follows: "The plaintiff is entitled to a reasonable compensation for his injuries, and whether they were the result of the negligence of an agent of a corporation or a natural person, can have no bearing in determining what that compensation shall be."

Mr. John F. Dillon for plaintiff in error.

The constitution of Arkansas, Art. VII, § 23, provides that "judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or instructions to writing on the request of either party."

In this case the matters of fact in issue were the alleged negligence of the defendant and contributory negligence of the plaintiff.

We submit that this constitutional provision should be followed by the Federal courts sitting as courts of common law in the state of Arkansas; and that this case is to be distinguished from Nudd v. Burrows, 91 U. S. 426, and Indianapo lis Railroad v. Horst, 93 U. S. 291.