Syllabus.

present system, than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the states. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity." 12 Wheat. 446.

Nothing can be added to the force of these words.

Our conclusion is, that the imposition of the tax in question in this cause was a regulation of interstate and foreign commerce, in conflict with the exclusive powers of Congress under the Constitution.

The judgment of the Supreme Court of Pennsylvania is, therefore, reversed, and the case is remanded to be disposed of according to law, in conformity with this opinion.

WESTERN UNION TELEGRAPH CO. v. PENDLETON.

ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA.

The statutes of the state of Indiana, §§ 4176, 4178, Rev. Stat. Ind. 1881, which require telegraph companies to deliver despatches by messenger to the persons to whom the same are addressed or to their agents provided they reside within one mile of the telegraphic station or within the city or town in which such station is, are in conflict with the clause of the Constitution of the United States which vests in Congress the power to regulate commerce among the states, in so far as they attempt to regulate the delivery of such despatches at places situated in other states.

The authority of Congress over the subject of commerce by telegraph with foreign countries or among the states being supreme, no state can impose an impediment to its freedom, by attempting to regulate the deliv.. ery in other states of messages received within its own borders. The reserved police power of a state under the Constitution, although dif, ficult to define, does not extend to the regulation of the delivery at

Statement of the Case.

points without the state of telegraphic messages received within the state; but the state may, within the reservation that it does not encroach upon the free exercise of the powers vested in Congress, make all necessary provisions in respect of the buildings, poles and wires of telegraph companies within its jurisdiction, which the comfort and convenience of the community may require.

THE statute of Indiana declared that "Every electric telegraph company, with a line of wires wholly or partly in this state, and engaged in telegraphing for the public, shall, during the usual office hours, receive despatches, whether from other telegraphing lines or from individuals; and on payment or tender of the usual charge, according to the regulations of such company, shall transmit the same with impartiality and good faith, and in the order of time in which they are received, under penalty, in case of failure to transmit, or if postponed out of such order, of one hundred dollars, to be recovered by the person whose despatch is neglected or postponed: Provided, however, That arrangements may be made with the publishers of newspapers for the transmission of intelligence. of general and public interest out of its order, and that communications for and from officers of justice shall take precedence of all others." § 4176, Rev. Stat. Ind. 1881. And that "such companies shall deliver all despatches, by a messenger, to the persons to whom the same are addressed, or to their agents, on payment of any charges due for the same: Provided, such persons or agents reside within one mile of the telegraphic station or within the city or town in which such station is." § 4178, Ibid.

The present action was brought by William Pendleton, the plaintiff below, to recover of the Western Union Telegraph Company the penalty of one hundred dollars prescribed by the above statute, for failing to deliver at Ottumwa, in Iowa, a message received by it in Indiana for transmission to that place. The complaint, as finally amended, alleged that the defendant below, the Western Union Telegraph Company, was a corporation organized and subsisting under the laws of Indiana, with a line of wires from Shelbyville, in that state, to Ottumwa, in Iowa; that on the 14th of April, 1883, at

Statement of the Case.

thirty-five minutes past five o'clock in the afternoon, at which time the company was engaged in telegraphing for the public, the plaintiff delivered to its agent at its office in Shelbyville, the following telegram for transmission to its office in Ottumwa, viz.:

"April 14th, 1883.

"To Rosa Pendleton, care James Harker,

near City Graveyard, Ottumwa, Iowa.

"Have you shipped things? If not, don't ship. Answer quick.

"WM. PENDLETON.";

that upon its delivery, the plaintiff paid the agent sixty cents, being the amount of the charge required for its transmission from Shelbyville to Ottumwa; that, without any fault or interference on his part, the company, after transmitting the message to Ottumwa, where it was received at half-past seven in the afternoon of that day, failed to deliver it either to Rosa Pendleton or to James Harker, whereby the plaintiff sustained damage and the defendant became liable for $100, under the statute of Indiana; for which sum plaintiff demanded judgment.

To this complaint the company answered, admitting the receipt of the telegram as alleged, and setting up that it transmitted the message with impartiality and good faith, in the order of time in which it was received, and without delay, to its office in Ottumwa, Iowa, where it was received, as alleged, at half-past seven of that day; that James Harker, to whose care the message was directed, lived more than one mile from the telegraph station at Ottumwa; that, in accordance with the usual custom of the office, the message was, without delay, placed in the post office of that town, with proper stamp thereon, and duly addressed; and that the telegram was received by the person to whom it was addressed on the following morning, April 15, 1883, at about nine o'clock.

The answer further set forth that the duties and liabilities of telegraph companies in Iowa, and the transmission and delivery of the telegrams within the state, were regulated by a

Argument for Plaintiff in Error.

special statute of that state, which was as follows, viz.: "Any person employed in transmitting messages by telegraph must do so without unreasonable delay, and any one who wilfully fails thus to transmit them, or who intentionally transmits a message erroneously, or makes known the contents of any message sent or received to any person except him to whom it is addressed, or to his agent or attorney, is guilty of a misdemeanor. The proprietor of a telegraph is liable for all mistakes in transmitting messages made by any person in his employment, and for all damages resulting from a failure to perform any other duties required by law;" that by that statute the defendant was not required to deliver telegrams by messenger to the persons to whom they were addressed; that in the city of Ottumwa it had established a certain district within which it delivered telegrams by messenger; and that on the receipt of the telegram in question at Ottumwa it was ascertained that Harker, to whose care it was addressed, did not reside within the delivery district, but outside of it, and more than one mile from the defendant's office, and that, in accordance with the custom and usage of the office, and in order to facilitate the delivery of the message, a copy of the telegram was promptly placed in the post office at Ottumwa, with proper address, and delivered as stated above.

To this answer the plaintiff demurred; the Circuit Court of the state sustained the demurrer; and, the defendant electing to stand upon its answer, judgment was rendered for the plaintiff for $100, which, on appeal to the Supreme Court of the state, was affirmed; and the company brought the case here for review.

Mr. Augustus L. Mason for plaintiff in error.

Mr. Joseph E. McDonald and Mr. John M. Butler for same submitted on their brief.

I. The business of telegraphing from one state to another is interstate commerce within the meaning of the 8th Section of the 1st Article of the Constitution of the United States.

The clause of the Constitution in question, which has been

Argument for Plaintiff in Error.

frequently held by this court to be among the most important grants of power contained in the Constitution, and conferred by it on the Federal government, is as follows: "The Congress shall have power ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The question as to whether the business of transmitting telegrams from one state to another, is interstate commerce within the scope of the above Constitutional provision has already been twice before this court. In Telegraph Co. v. Texas, 105 U. S. 460, the court said: "In Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, this court held that the telegraph was an instrument of commerce, and that telegraph companies were subject to the regulating power of Congress in respect to their foreign and interstate business. A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits."

II. The power of Congress to regulate interstate commerce is exclusive in all cases where the subject over which the power is exercised is in its nature national or admits of one uniform system or plan of regulation. The inaction of congress upon such a subject is equivalent to a declaration that it shall be free from all state regulation or interference. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Brown v. Houston, 114 U. S. 622; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Wabash, St. Louis & Pacific Railway v. Illinois, 118 U. S. 557; Walling v. Michigan, 116 U. S. 446; Corson v. Maryland, 120 U. S. 502; Case of the State Freight Tax, 15 Wall. 232; Cooley v. Port Wardens, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713; Hall v. De Cuir, 95 U. S. 485, 497; Railroad Co. v. Husen, 95 U. S. 465.

III. The subject over which the power of regulation is attempted to be exercised in this case is in its nature national,