Argument for Plaintiff in Error.

and properly admits only of one uniform system or plan of regulation.

The particular subject over which the power of regulation is attempted to be exercised in this case by the state of Indiana is the manner and order of transmission and delivery of telegrams within the state of Iowa, which have been sent from points within the state of Indiana. The mere statement of such a claim of power must carry to the mind the conviction that no such power exists. If Indiana has the right to prescribe, under penalty, for failure, the manner and order of transmission and delivery, within the state of Iowa, of telegrams sent from Indiana, every other state has the same right with regard to telegrams originating within its own boundaries. The Western Union Telegraph Company is engaged in interstate commerce. Its business is interstate commerce. If that business is to be hampered, restricted and burdened by state legislation of this character, which attempts to impress upon a telegram, originating within the state, certain rules regulating its transmission and delivery, which follow the telegram into whatever state it may go, a conflict and confusion must arise which would be fatal to the business. Operators and agents would find it impossible to remember or to observe the rules and regulations of the various states according to which telegrams, originating from the respective states, must be transmitted and delivered. Heavy penalties must, at every step, be incurred, in spite of the utmost good faith. Conflicts of law would necessarily arise, to determine which, no competent tribunal could be found. The Indiana legislature has enacted this statute, which prescribes under penalty, that all telegrams shall be transmitted in the following order: First, communications for or from officers of justice; second, telegrams containing news of general interest; third, all other telegrams must be transmitted and delivered in the order in which they are received. If Indiana has the power to enact and enforce such a law in regard to interstate telegrams, then every other state has an equal right to prescribe a different order for the transmission of telegrams and to enforce it by penalties. Hall v. De Cuir, 95 U. S. 465, 485.

Argument for Plaintiff in Error.

The recent cases of this court upon the subject of interstate commerce herein before cited, uniformly hold that interstate railroad business and the transportation by rail across the country, of freight and passengers, is a subject national in its nature, and admits only of a uniform plan of regulation. This court has jealously guarded such interstate commerce from the regulation by various states. The subject of interstate telegraph business is one coördinate with railroad transportation, and equally with it, a subject national in its nature and admitting only of one uniform plan of regulation. Telegraph Co. v. Texas, 105 U. S. 460, 466.

What has been said as to inevitable conflicts in law, should the power of a state to regulate by statute the order of transmission of interstate telegrams be sustained, applies with equal force to statutes regulating the mode of delivery of telegrams. A telegram must be delivered. Without it the transmission amounts to nothing. It is easy to see that different state legislatures might differ in their enactments as to modes of delivery and enforce such rules by penalties for their violation. Indeed, in the case at bar, the Indiana legislature prescribed a mode of delivery which the Iowa legislature has by its silence impliedly declared to be unwise or unnecessary. It is not a question here as to the reasonableness of the statute in question. If such a statute can be enacted at all, its provisions will rest in the discretion of the state. It is idle to say that the interests of the state would prevent oppressive legislation. This precise point was adverted to by Mr. Justice Field in the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, on page 205. He said among other things: "Those engaged in foreign and interstate commerce are not bound to trust to its [the state's] moderation in that respect; they require security, and they may rely on the power of Congress to prevent any interference by the state until the act of commerce, the transportation of passengers and freight, is completed."

In the case of Wabash, &c., Railway Co. v. Illinois, 118 U. S. 557, above cited, the principle therein stated is so applicable to the case at bar that we quote from page 572. "It is

VOL. CXXII-23

Argument for Plaintiff in Error.

not the railroads themselves that are regulated by this act of the Illinois legislature so much as the charges for transportation, and, in language just cited, if each one of the states through whose territories these goods are transported can fix its own rules for prices, for modes of transit, for times and modes of delivery, and all other incidents of transportation to which the word 'regulation' can be applied, it is readily seen that the embarrassment upon interstate transportation, as an element of interstate commerce, might be too oppressive to be submitted to. 'It was,' in the language of the court cited above, to meet just such a case that the commerce clause of the Constitution was adopted.""

It seems apparent, from a moment's thought, that a state cannot have the power to regulate the transmission or delivery of interstate telegrams even within its own borders. Take as an illustration the Indiana statute requiring delivery by messenger. To impose this upon telegrams coming into the state from without, is to impose a burden upon the business, and is equivalent to imposing a tax upon each message. The messenger service must be paid for, either by the telegraph company or its patrons. In the case of Gloucester Ferry Co. v. Pennsylvania, supra, this court expressly held, "that a tax upon receiving and landing passengers and freight is a tax upon their transportation; that is, upon the commerce between the two states involved in the transportation."

The whole field of the regulation of the transmission and delivery of interstate telegrams, should be kept free from interferences by the states by means of statutes of the character of the one involved. This principle would dispose of this case, but a much narrower principle will also dispose of it. This case presents the question of the regulation, by a state, of the transmission and delivery of telegrams, outside of its own borders.

IV. The Supreme Court of Indiana saw fit to place its decision in this case upon the footing of an exercise of the police power of the state. We do not think any such claim for the extent of the police power can be found in any other reported decision. Certainly it seems contrary to fundamental

principles of law.

Argument for Plaintiff in Error.

It will be kept in mind that the act or omission alleged to constitute the violation of the Indiana penal statute occurred wholly outside of the territory of the state of Indiana, and inside of the territory of the state of Iowa.

Acts rendered penal by law are penal only because the law of the place where committed makes them so. Graham v. Monsergh, 22 Vt. 543; Richardson v. Burlington, 33 N. J. Law (4 Vroom), 190; Slack v. Gibbs, 14 Vt. 357; Nashville, &c., Railroad v. Eaken, 6 Coldwell, 582: Crowley v. Panama Railroad, 30 Barb. 99; Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48; Shedd v. Moran, 10 Bradwell (App. Ill.) 618.

"All laws are co-extensive and only co-extensive with the political jurisdiction of the law-making power." McCarthy v. Chicago & Rock Island Railroad, 18 Kansas, 46, and authorities above cited.

In this connection we beg leave to call attention to the following quotation from Cooley's Constitutional Limitations, which Mr. Justice Field made in the opinion in the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, on page 215, and which is also quoted in several other recent decisions by this court. It is as follows:

"It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions if it shall be deemed advisable, and that to whatever extent ground shall be covered by those directions, the exercise of state power is excluded, Congress may establish police regulations as well as the states, confining their operations to the subjects over which it is given control by the Constitution." Cooley's Constitutional Limitations, 732.

The whole subject of the transmission and delivery of interstate telegrams is, it seems, a subject national in its character and admits safely of only one uniform plan of regulation. But however it may be as to the regulation by a state of the transmission and delivery of such telegrams within its own. boundaries, it seems certain that no power exists in a state to regulate the mode and order of transmission and delivery of interstate telegrams, starting from points within its own terri

Opinion of the Court.

tory, after such telegrams have passed the state line and are within the boundaries of other states.

No appearance for defendant in error.

MR. JUSTICE FIELD, after stating the case as above, delivered the opinion of the court.

The contention of the Western Union Telegraph Company is that the law of Indiana is in conflict with the clause of the Constitution vesting in Congress the power to regulate commerce among the states.

In Telegraph Co. v. Texas, 105 U. S. 460, 464, it was decided by this court that intercourse by the telegraph between the states is interstate commerce. Its language was: "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."

Although intercourse by telegraphic messages between the states is thus held to be interstate commerce, it differs in material particulars from that portion of commerce with foreign countries and between the states which consists in the carriage of persons and the transportation and exchange of commodities, upon which we have been so often called to pass. It differs not only in the subjects which it transmits, but in the means of transmission. Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that