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. Telegraph Co. v. Texas, 105 U. S. 460.

Taxation by State of Telegraph Company.- Messages sent by telegraph company out of the State is a tax on interstate commerce, and a statute of a State imposing such tax is unconstitutional and void. Telegraph Co. v. Texas, 105 U. S. 460.

The Constitution of Texas authorized its Legislature to "impose occupation taxes, both upon natural persons and upon corporations other than municipal doing business in the State. A Texas statute (Art. 4655, Rev. Stat.) declared that every chartered telegraph company doing business in the State is required to pay a tax of one cent for every full-rate message sent, and onehalf of one cent for every message less than full rate. Under this act the Western Union Telegraph Company between October 1, 1879, and July 1, 1880, was taxed on 169,076 full rate, and on 100,408 less than full rate messages. A large portion of these were sent out of the State. Some messages were sent by government officers on public business. The company refused to pay the tax and was sued in the State court and judgment was recovered against it on the ground that the Texas statute was valid. This judgment was sustained by the Supreme Court of Texas. On writ of error to the Supreme Court of the United States the judgment was reversed as to messages sent out of the State and as to government messages, on the ground that the statute of Texas, in assuming to tax such messages, was without power, and its statute was void. Ib.

Chief Justice WAITE, in his opinion, observed that " if a tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such so far as it operates on private messages sent out of the State it is a regulation on foreign and interstate commerce and beyond the power of the State. As to the government

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messages it is a tax by the State on the means employed by the government of the United States to execute its constitutional powers. McCullough v. Maryland (4 Wheat. 316), and therefore void." Ib.

See also to same effect Ratterman v. Western Union Tel. Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. S. 640.

State Law as to Messages Operates only within the State.-The manner in which a telegraph company conducts its business in different States cannot be governed by a State statute. A State law as to mode of delivering messages cannot operate as to a breach of its provisions in another State, and its provisions cannot be enforced except for violations in the State in which the law was enacted. Western Union Tel. Co. v. Pendleton (May, 1887), 122 U. S. 347; Western Union Tel. Co. v. James (May, 1896), 162 U. S. 650.

In the Pendleton case the court was required to construe a statute of the State of Indiana which required telegraph companies to deliver dispatches, by messenger, to the persons to whom they are addressed or to their agents if they reside within one mile of the telegraph station or within the city or town in which the station is. Such a statute cannot operate without the State, as it would constitute a regulation with regard to interstate commerce which the State has no power to make.

William Pendelton, the plaintiff, sent a telegram from Shelbyville, Ind., to Ottumwa, Iowa, on April 14, 1883. The message was sent at thirty-five minutes past 5 in the afternoon. The defendant received the message at Ottumwa at 7:30 P. M. James Harker, in whose care the message was sent, lived more than a mile from the telegraph station in Ottumwa. Defendant, as was its custom, if the person addressed lived more than a mile from the station, put the message in the post-office in Ottumwa and it was delivered to the sendee next morning by the postmaster at about 9 A. M. The Indiana statute (§ 4176, Rev. Stat. Ind. 1881) required every telegraph company to deliver messages "with impartiality and in good faith, and in the order of time in which they are received," under penalty of $100 for failure to transmit, or if delayed or postponed.

Plaintiff claimed to have suffered damage by the delay of the message, and sued defendant under the Indiana statute for fail

ure to deliver the message in the sum of $100 in the State court of Indiana. Defendant's answer set forth the duties and liabilities of defendant in the State of Iowa, which required it to transmit messages without unusual delay, and willful failure to deliver was declared a misdemeanor. On demurrer to the answer plaintiff had judgment for $100, which was affirmed by the Supreme Court of Indiana. On writ of error to the Supreme Court of the United States the judgment was reversed on the ground that the Indiana statute, in so far as it attempted to regulate the mode in which messages sent in Indiana, should be delivered in other States, was void, as its operation affected a regulation of interstate commerce. Western Union Tel. Co. v. Pendleton (May, 1887), 122 U. S. 347.

State Law; when Operative within the State.- A State has power to pass a law requiring a telegraph company to promptly transmit and deliver messages within the State, under a penalty of $100. Such a statute is valid only within the State, and can be enforced within the State as a valid exercise of its police power.

The Legislature of Georgia passed a law requiring a telegraph company during usual office hours to receive all dispatches, and on payment of usual charges to "transmit and deliver the same with impartiality and good faith, and with due diligence, under penalty of $100" to be recovered by suit in any court having jurisdiction. That statute further declared that the act should not be construed so as to impair right of party to recover damages for breach of contract or duty by any telegraph company, which damages might be recovered in the same suit.

Plaintiff, a cotton merchant living at Blakely, Ga., on November 4, 1890, wired Tullis & Co. at Eufaula, Ala., offering to sell cotton on terms named in the message. Tullis received the message the same day, and sent a telegram to Blakely accepting his offer. This message was received by defendant at Blakely late in the evening of November 4th. Defendant did not deliver it till the next morning, November 5th. Plaintiff claimed that the message was not delivered by defendant with due diligence and that as a result of the delay he suffered damage. He sued defendant in the State court of Georgia under the Georgia statute for the $100 penalty and also for $242.60 damages. At

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the trial plaintiff recovered both the penalty and the damages. On appeal to the Supreme Court of Georgia the judgment was sustained as to the penalty, but reversed as to the damages, and plaintiff having remitted the claim for damages the judgment as to the penalty of $100 under the statute was affirmed.

A writ of error was sued out by defendant to the Supreme Court of the United States where the judgment was affirmed and the Georgia statute upheld as a valid exercise of the police power of the State. Western Union Tel. Co. v. James (May, 1896), 162 U. S. 650.

Mr. Justice PECKHAM distinguished the Pendleton case (122 U. S. 347). He observed that in the case cited, the State court sought to enforce an Indiana statute outside and beyond the territorial limits of the State. "That statute," says Mr. Justice PECKHAM, referring to the Indiana law, "was held to conflict with the clause of the Constitution of the United States which vests in Congress power to regulate commerce among the States in so far as it attempted to regulate the delivery of such dispatches to places situate in other States, and it was said that the reserved police power of the State, under the Constitution, although difficult to define, did not extend to the regulation of the delivery at points without the State of telegraphic messages received within the State." Ib.

The Georgia Statute Construed. In construing the Georgia statute, as to the question of the penalty and the damages imposed, Mr. Justice PECKHAM said:

"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 commerce, but a provision which only incidentally affects it. We do not mean to be understood as holding that any State law on this subject would be valid, even in the absence of congressional legislation, if the penalty provided was 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 legisla

tion. It might then be urged that legislation of that character was not in aid of commerce, 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.

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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 sura 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 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." Ib.

Text of the Georgia Statute. The Georgia statute, the validity of which was upheld in the case cited, is entitled: "An Act to prescribe the duty of electric telegraph companies as to receiving and transmitting despatches, to prescribe penalties for violations thereof, and for other purposes." The text of the statute is as follows:

Messages to be Delivered with Diligence.-"Sec. 1. Be it enacted by the general assembly of the State of Georgia, and it is hereby enacted by authority of the same, that from and after the passage of this act, every electric telegraph company with a line of wires,