suitor, even upon the allegation that his property is about to be confiscated, or some other constitutional right is about to be impaired; and it should not be done except upon a full disclosure of all the facts in the complainant's possession, and upon the the time this ordinance was passed, a general law requiring all business to be suspended on Sunday except the sale of "drugs, or other articles of immediate necessity." In holding the ordinance in this case not to be in necessary conflict with this statute, the court argued that proper exceptions could always be made to the operation of any general law with clearest showing that the threatened injury out making the things or persons excepted the will at least probably result." necessary objects of class legislation, provided the exceptions so made were founded in reason and on distinctions "not purely arbitrary." The It would be good policy on the part of federal judges to follow the action of Judge general law excepted "articles of immediate Philips who, when considering the identical necessity," and left it to the courts to deterquestion presented in this case, held that it mine what articles such exception might inwould be impossible to decide whether the clude. In order, then, to show that the municireduction of a rate will be confiscatory in pal assembly of St. Louis, which had authority to pass such an ordinance which would not be the absence of an actual test of the same. in conflict with the general rule merely put a The learned judge further held that whethstatutory construction on the term "articles of er it would be so or not was speculative and immediate necessity" by including the sale of mere guesswork, and that the testimony of meats up to a certain hour the court makes an ordinary business man, expressing his the following interesting argument: "When the municipal assembly came to the consideration opinion, or even of railway experts, also of this statute as applied to the conditions of a giving opinions and illustrating them by great and populous city, doubtless it was conthe use of many figures based upon past fronted with the question: What were and are experience, was not satisfactory, and did acts of necessity and charity? And it must have occurred to that body that thousands of persons not relieve the doubt and uncertainty suffiwere and are dependent for their supply of ciently to warrant the issuing of a prelimin-meats, particularly fresh meats, upon the retail ary injunction. Railway Co. v. Hadley (C. meat shops, and that thousands of them in all C.), 155 Fed. at page 225. NOTES OF IMPORTANT DECISIONS. CONSTITUTIONAL LAW-ARE SUNDAY LAWS APPLICABLE TO SPECIAL TRADES UNCONSTITUTIONAL AS CLASS LEGISLATION?-Appellate courts are right now experiencing some difficulty with a species of reform legislation which might be styled "special Sunday laws," that is, laws which require those engaged in certain kinds of trade or business to suspend on Sunday. In the recent case of City of St. Louis v. DeLassus, 104 S. W. Rep. 12, the Supreme Court of Missouri wrestled valiantly with a law of this kind, in this case, an ordinance of the City of St.Louis providing that butcher shops should not open after 9 o'clock Sunday morning. The question in this case was whether this ordinance by directing its fiat exclusively at butcher shops was not class legislation, especially in view of the position of the Missouri Supreme Court in the case of State v. Granneman, 132 Mo. 326, 33 S. W. Rep. 784, holding void an act of the legislature requiring barber shops to be closed on Sunday. The question as above stated is further complicated by the fact that there was in force at probability were not provided with refrigerators or cold storage in which to keep fresh meat, purchased on Saturday, fit for food on Sunday, especially during the hot weather. Accordingly, it was deemed proper and wise to declare and enact by a general provision that the sale of meat up to 9 o'clock in the forenoon on Sunday should be considered an act of immediate necessity, and thus relieve the vendors or proprietors of these meat shops of the burden of showing in each individual instance that the furnishing of meat to a family on Sunday morning up to 9 o'clock was an act of immediate necessity. Not only is this provision of the ordinance in question not adverse class or special legislation against the owners of these shops, but it is more properly a special dispensation in their favor, hurtful to no one, but a wise discrimination in favor of thousands of families who are dependent for their supply of meat upon these meat shops, and in no sense arbitrary." When, however, the court attempts to reconcile the decision in the principal case with its former decision in the case of State v. Granneman, supra, the question whether it succeeded in so doing, is quite doubtful. If the legislature or a municipal assembly can by further legislation positively define the phrase "articles of immediate necessity" by specifying what, particular articles shall be so considered and to what extent, why may it not also negatively define the same phrase in the general law by specifying what particular articles shall not be considered "articles of immediate necessity." Or even if the courts have by a line of decision held a certain kind of trade or business, one of "immediate necessity" may not the legislature, in the exercise of the police power of the state say that other considerations of paramount importance to the state make the suspension of even such a business on Sunday necessary to the general welfare? This question has been raised in other jurisdictions, especially as to laws requiring barber shops to close on Sunday, and such legislation has been held constitutional both in the state courts and by the Supreme Court of the United States, on the ground that it was competent for the legislature to take cognizance that barbers ordinarily work a greater number of hours each day than other laborers and are compelled to stand on their feet all the time in performing their duties. State v. Nichols, 28 Wash. 628, 69 Pac. Rep. 372; State v. Petit, 74 Minn. 376, 77 N. W. Rep. 225; Petit v. Minnesota, 177 U. S. 164, 20 Sup. Ct. Rep. 666, 44 L. Ed. 716; Ex parte Northrup, 41 Or. 489, 69 Pac. Rep. 445. On the other hand, the Supreme Court of Illinois, in Eden v. People, 161 Ill. 296, 43 N. E. Rep. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365, the Supreme Court of Missouri in State v. Granneman, 132 Mo. 326, and the Supreme Court of California, in Ex parte Jentzsch, 112 Cal. 468, 44 Pac. Rep. 803, 32 L. R. A. 664, have adjudged such acts unconstitutional, on the ground that it is special legislation. THE CONSTITUTIONALITY OF STATE LEGISLATION REQUIRING TELEGRAPH COMPANIES TO TRANSMIT MESSAGES PROMPTLY AND TO DELIVER WITHIN CERTAIN LIMITS. This is a question of considerable importance as many of the state legislatures have passed acts, all more or less alike, requiring telegraph companies to serve all alike and requiring them to transmit messages in the order of time in which they are filed, with certain exceptions such as newspaper articles, etc., and requiring them to deliver within certain limits, usually within one mile of the office, and providing for a penalty of from $50.00 to $100.00 in case of failure to perform. By the general law of the land, telegraph companies were and are liable for any and all damage occasioned by their negli gence, but this is far from a satisfactory rule, for under that law one can only recover the amount of damages which he is able to prove. This is very satisfactory where actual money damages have resulted, but where mere inconvenience or anxiety resulted without any money loss, nothing can be recovered; and so telegraph companies, which are quasi public corporations and which are under obligations to serve the public honestly and with care and diligence and which are granted many privileges that the individual does not enjoy, can, with impunity, neglect and wholly fail to transmit messages, where from the nature of the message no money damage is liable to result, and be liable for nothing at all except nominal damages. So, in many cases, possibly 50 per cent of them, no adequate remedy would be at hand under the general law to procure redress for a failure on the part of a telegraph company to transmit a message with care and diligence. So, although the people give the companies many extraordinary powers and privileges, such as the power of eminent domain, etc., they, under the general law, are left without any means, in many cases, of compelling the companies to serve them in turn. To provide for this deficiency, and deficiency it is, in the law, many states have passed acts of the nature above referred to requiring telegraph companies to respond in damages in a given sum in case of a wilful failure or, in many cases of a neglect, to serve. This specified penalty is in the nature of liquidated damages and is payable to the aggrieved party. The law presumes that upon the wilful or negligent failure of a telegraph company to perform its duty to the public, damage results and places it at a specified amount which can be recovered by suit; or, in case he can prove damages in excess of the statutory penalty, he may waive the statute and sue under the general law and recover whatsoever amount of damages he is able to prove.1 Or he may waive any special damage he may have sustained and sue for the statutory penalty.2 It is held in Western Union Telegraph Co. v. Pendleton, and the cases there cited that the 3 1 Western Union Tel. Co. v. Ferguson, 157 Ind. 37, 40. 2 Western Union Tel. Co. v. James, 162 U. S. 651, 16 Sup. Ct. Rep. 934. 3 95 Ind. 12, 18. 8 amount recoverable is not liquidated damages, payable to the aggrieved party for the breach of a contract, but is a penalty, although the right of action is founded upon a contract, while in Western Union Telegraph Co. v. Ferguson, the amount recoverable is held to be punitive damages. Most of the states provide that the penalty shall be recoverable by the aggrieved party and the decisions hold that the aggrieved party is the sender." The Georgia statute provides that the penalty is recoverable by either the sender or the party to whom the message is addressed and provides that it is recoverable by the party who first sues. Under this statute the party to whom it is addressed is held to be a proper party to bring the suit." While there is some conflict among the decisions as to whether or not telegraph companies are common carriers, it seems to be established, and no doubt correctly, that they are instruments of commerce and that messages are a part of commerce.7 In Telegraph Co. v. Texas, it was decided that intercourse by 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 many respects different, but they are, both indispensable to those engaged to any considerable extent in commercial pursuits." So, we are met at the outset with the question as to whether or not these regulations, in so far as they affect interstate business, are not an interference with interstate commerce and in conflict with Article 1, Section 8, of the federal constitution, which provides that congress shall have power to regulate interstate commerce. There are decisions which hold that any state legislation which in any way affects interstate commerce 4 157 Ind. 37, 40, 41. 5 Western Union Tel. Co. v. Pendleton, 95 Ind. 12; Dickson v. Reuter's Tel. Co., L. R. 2 C. P. D. 62; Playford v. U. K. Tel. Co., L. R. 4 Q. B. 706. 6 Western Union Tel. Co. v. James, 162 U. S. 651, 16 Sup. Ct. Rep. 934. 7 Western Union Tel. Co. v. James, 162 U. S. 651, 16 Sup. Ct. Rep. 934; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; Tel. Co. v. Texas, 105 U.S. 460; Tel. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. Rep. 1126. In is in conflict with the commercial clause in our federal constitution, but this is not the accepted doctrine and the generally accepted rule is, that where congress has failed to exercise its right to legislate and control, in regard to matters which are not necessarily national in their character and in which uniformity of rule is not necessary, that in these cases the states may legislate; the states have the power, at least in the absence of congressional legislation on the subject, to clear and dredge rivers and improve harbors, etc., although they are more or less closely connected with interstate commerce and commerce between nations.9 It is not always necessary or desirable that regulation of matters and things that in one way or another may affect commerce should be uniform. many instances provisions and regulations of instruments and means are best left in the control of the different localities. It was said in Cooley v. Board of Wardens of the Port of Philadelphia, 10 that, "it manifests the understanding of congress, at the outset of the government, that the nature of this subject is not such as to require its exclusive legislation. The practice of the states and of the national government has been in conformity with this declaration from the origin of the national government to this time; and the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity of different systems of regulation, drawn from local knowledge and experience and conformed to local wants." It was said in County of Mobile v. Kimball, 11 that, "buoys and beacons are important aids, and sometimes are essential to the safe navigation of vessels, in indicating the channel to be followed at the entrance of harbors and in rivers, and their establishment by congress is undoubtedly within its commercial power. But it would be extending that power to the exclusion of state authority to an unreasonable degree to hold that whilst it remained unexercised upon this subject, it would be unlawful for the state to provide the buoys and beacons required for the safe navigation of its harbors and rivers and in case of their 8 105 U. S. 460, cited above. 9 County of Mobile v. Kimball, 102 U. S. 691. 10 12 How. 299, 320. 11 102 U. S. 691, 698. destruction by storms or otherwise it could not temporarily supply their places until congress could act in the matter and provide for their re-establishment. That power, which every state possesses, sometimes termed its police power, by which it legislates for the protection of the lives, health, and property of its people, would justify measures of this kind. The uniformity of commercial regula-❘ tions, which the grant to congress was designed to secure against conflicting state provisions, was necessarily intended only for cases where such uniformity is practicable. Where from the nature of the subject or the sphere of its operation the case is local and limited, special regulations adapted to the immediate locality could only have been anticipated. State action upon such subjects can constitute no interference with the commercial power of congress, for when that acts the state authority is superseded. Inaction by congress upon these subjects of a local nature or operation, unlike its inaction upon matter affecting all the states and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done with respect to them, but is rather to be deemed a declaration that for the time being, and until it sees fit to act, they may be regulated by state authority." In Willson v. Blackbir d Creek Marsh Company, 12 a law of Delaware authorizing the construction of a bridge over one of its small navigable streams, which obstructed the navigation of the stream, was held not to be repugnant to the commercial power of congress. The court, Chief Justice Marshall delivering its opinion, placed its decision entirely upon the absence of any congressional legislation upon the subject. Its language was: "If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states,-we should not feel under difficulty in saying that a state law coming in conflict with such act would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repug 12 2 Pet. 245, 252. nance to the power to regulate commerce with foreign nations and among the several states, -a power which has not been so exercised as to affect the question." In regard to those matters relating to commerce which are not of a nature to be affected by locality, but which necessarily ought to be the same over the whole country, it has been frequently held that the silence of congress upon such a subject, over which it had unquestioned jurisdiction, was equivalent to a declaration that in those respects commerce should be free, and unregulated by any stale enactment. 13 The matters upon which the silence of congress is equivalent to affirmative legislation are national in their character, and such as to fairly require uniformity of regulation upon the subject matter involved affecting all the states alike. 14 In Covington & C. Bridge Co. v. Kentucky, 15 Mr. Justice Brown in delivering the opinion of the court said: "The adjudications of this court with respect to the power of the state over the general subject of commerce are divisible into three classes: First, those in which the power of the state is exclusive; second, those in which the states may act in the absence of legislation by congress; third, those in which the action of congress is exclusive, and the state cannot interfere at all." In Covington & C. Bridge Co. v. Kentucky, 16 Bridge Co. v. Kentucky, 16 are cited many cases as coming within the second class, among which are laws for the regulation of pilots, for quarantine and inspection, for policing harbors, improving navigable channels, regulating wharves, piers, and docks, constructing dams and bridges across navigable waters of the state, and also laws for the establishment of ferries. In relation to the power of congress to regulate commerce in cases of the second class, it is said that it is not its mere existence, but its exercise by congress, which may be incompatible with the exercise of the same power by the states, and that the states may legislate in the absence of congressional regulations.17 A state statute was held valid in Smith v. Alabama, 18 which provided for an examination of engineers of 13 Welton v. State, 91 U. S. 275, 282; Hall v. DeCuir, 95 U. S. 485, 490. 14 County of Mobile v. Kimball, 102 U. S. 691. 17 Sturges v. Crowninshield, 4 Wheat. 122, 193. locomotives by a state board of examiners, and it was applied to an engineer engaged in running a locomotive on one continuous trip rom Mobile in Alabama to Corinth in Mississippi. It was held to be a valid police regulation. Legislation which is a mere aid to commerce may be enacted by a state, although at the same time it may incidentally affect commerce itself. 19 So much to show that under the decisions the states may legislate in certain instances in reference to interstate commerce. Now in reference to the question as to whether or not they may legislate in reference to the telegraph business, a particular phase of interstate commerce. Since the decision of our federal supreme court in Western Union Telegraph Co. v. Pendleton, 20 which is a pioneer case in the effect of its decision, it is held that a state legislature cannot impose a penalty for a failure to deliver in another state. The message, in this case, was left at Shelbyville, Indiana, and addressed to a person at Ottumwa, Iowa, and the statute provided for a penalty of $100.00 for a failure to deliver promptly within a mile limit. The message was not delivered until the next morning, it having arrived at Ottumwa at 7:30 in the evening. It was then delivered by mail, although the party to whom it was addressed lived within one hundred feet of the telegraph station at that place. The court said that as the object of vesting the power to regulate commerce in congress was to secure uniformity of rule and action that the provisions of the statute in reference to delivery within another state could not be enforced as this would inevitably lead to confusion as the different states might well and would be likely to have conflicting legislation in reference to delivery. The statute of the state from which the message was sent might require certain actions under certain penalties and the state to which it was sent might have other provisions with reference to delivery, and a different penalty be provided; this being true, chaos would result, the opposite of what is desired. This stands as the law today on that question. In Western Union Telegraph Co. v. James, 21 it is decided that the party to whom a message is addressed 19 County of Mobile v. Kimball, 102 U. S. 691. 20 122 U. S. 347, 7 Sup. Ct. Rep. 1126. 21 162 U. S. 651, 16 Sup. Ct. Rep. 934. may bring a suit for the statutory penalty for a failure to deliver promptly a message sent from another state under the Georgia statute, which provided that the party addressed might bring the action. The court held that the act was an aid to commerce and not a hindrance and that at least so long as congress had not legislated upon the subject, that the states were free to act. The court held that there was no tax levied nor the penalty prohibitive. It expressly said that it would not attempt to say that a higher penalty might not have the effect of making an act unconstitutional, but said that it regarded the penalty of $100.00 provided for by the statute as being within reason. The court in the course of its opinion said: "The statute in question is of a nature that is in aid of the performance of a duty of the company that would exist in the absence of any such statute, and it is in no wise obstructive of its duty as a telegraph company. It imposes a penalty for the purpose of enforcing the general duty of the company. The direction that the delivery of the message shall be made with impartiality and in good faith and with due diligence is not an addition to the duty which it would owe in the absence of such a statute. Can it be said that the imposition of a penalty for the violation of a duty which the company owed by the general law of the land is a regulation of or an obstruction to interstate commerce within the meaning of that clause of the federal constitution under discussion? We think not. No tax is laid upon any interstate message, nor is there any regulation of a nature calculated to at all embarrass, obstruct, or impede the company in the full and fair performance of its duty as an interstate sender of messages. We see no reason to fear any weakening of the protection of the constitutional provision as to commerce among the several states by holding that in regard to such a message as the one in question, although it comes from a place without the state, is yet under the jurisdiction of the state where it is to be delivered (after its arrival therein at the place of delivery), at least so far as legislation of the state tends to enforce the performance of the duty owed by the company under the general law. So long as congress is silent upon the subject, we think it is within the power of the state government to enact legislation of the nature |